Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to: (a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects); (b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice; (c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets; (d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate; (e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects; (f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder; (g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms; (h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person; (i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement; (j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes); (k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP; (l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law; (m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees; (n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries; (o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or (p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 4 contracts
Samples: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Smith a O Corp)
Conduct of the Business. From (a) Except as required by applicable Law, Judgment or a Governmental Authority, as expressly contemplated, required or permitted by this Agreement or the date hereof until Merger Agreement or otherwise undertaken to implement this Agreement, any Ancillary Agreement or the Closing DateMerger Agreement, except or as set forth in Schedule 5.016.01, as expressly contemplated by applicable Law during the period from the date of this Agreement until the Closing (or by the Transaction Documentssuch earlier date on which this Agreement is terminated pursuant to Section 9.01), with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written unless Purchaser otherwise consents in writing (such consent (not to be unreasonably withheld, conditioned delayed or delayedconditioned), (i) Seller shall, and shall conduct cause the other Asset Seller Entities to, use its and their commercially reasonable efforts to carry on the Business in all material respects in the ordinary course consistent with past practice practice, and (ii) to the extent consistent with the foregoing, Seller shall, and shall cause the other Asset Seller Entities to, use its and their commercially reasonable efforts to (A) preserve intact the present business organizations of the Business substantially intact and goodwill (B) preserve existing relations with key customers and distributors of the Business and with other Persons with whom Seller and the other Asset Seller Entities have significant business relationships with respect to the Business, preserve the present relationships of the Business in each case, consistent with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition past practice.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject to foregoing, except as required by applicable Law, from Judgment or a Governmental Authority, as expressly contemplated, required or permitted by this Agreement or the date hereof until the Closing Date, except Merger Agreement or as set forth in Schedule 5.016.01, as expressly contemplated by during the Transaction Documents period from the date of this Agreement until the Closing (including the Restructuring) or with Buyer’s prior written such earlier date on which this Agreement is terminated pursuant to Section 9.01), unless Purchaser otherwise consents in writing (such consent (not to be unreasonably withheld, conditioned delayed or delayedconditioned), with respect Seller shall not, and shall not permit any other Asset Seller Entity to, in each case solely to the extent relating to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts incur any Indebtedness that creates or results in a Lien (iiother than a Permitted Lien) otherwise upon any of the Purchased Assets, except for Indebtedness incurred in the ordinary course of business consistent with past practice that (A) constitutes an Excluded Liability, (B) does not result in all material respects)a Lien (other than a Permitted Lien) on the Purchased Assets that will survive the Closing, or (C) constitutes a letter of credit, bank guarantee, security or performance bond or similar credit support instrument, overdraft facility or cash management program;
(bii) sell, lease, license or otherwise dispose transfer, directly or indirectly, to any Person, in a single transaction or series of related transactions, any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (iA) pursuant ordinary course dispositions of inventory to existing Contractscustomers and distributors consistent with past practice, (B) dispositions consistent with past practice of (1) obsolete, surplus or worn out assets or (2) assets that are no longer used or useful in the Business, or (iiC) otherwise transfers among the Asset Seller Entities;
(iii) make any acquisition of, or investment in, any properties, assets, Securities or business for the Business, except for the acquisitions of supplies, inventory, equipment, merchandise or products in the ordinary course of business consistent with past practice;
(civ) create or otherwise incur grant any Lien (other than a Permitted Lien) on any of the Purchased Asset or any asset of any Purchased Subsidiary, Assets other than Permitted Liens (A) to secure Indebtedness and other obligations permitted under Section 6.01(b)(i), or (B) any such Lien that will not survive the Closing and will not (1) require any Consent to be obtained in connection with the Transactions or (2) delay in any material respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assetsconsummation thereof;
(dA) incur any capital expendituresmodify, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually amend or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions toterminate, or investments inwaive, in each case in any material respect, any other Person with respect to the Businessrights or claims under, any Material Contract or any Restricted Contract other than in the ordinary course of business consistent with past practice in all material respects;
or (f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(gB) enter into any new Contract that (1) would, in the twelve (12)-month period immediately following the entry into such Contract, reasonably be expected to meet the threshold monetary requirement set forth for such type of a Contract in Section 4.11(a)(iii) for the fiscal year ended December 31, 2016, (2) is a Restricted Contract, or (3) contains a change in control or similar provision in favor of the other party or parties thereto that would require a material payment to or would give rise to any material rights of such other party or parties in connection with the consummation of the Transactions (including a hedging in combination with any other event or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreementcircumstance), in each case other than any such Contract entered into pursuant to a tender offer process for Contracts with a Governmental Authority in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariespractice; or
(pvi) agree authorize any of, or commit or agree, in writing or otherwise, to do take any of, the foregoing actions.
(c) Nothing contained in this Agreement is intended to give Purchaser, directly or indirectly, the right to control or direct the operations of the foregoingBusiness prior to the Closing, and nothing contained in this Agreement is intended to give Purchaser at any time, directly or indirectly, the right to control or direct any Excluded Businesses. For Prior to the avoidance Closing, each of doubt, Purchaser and Seller shall be permitted to (i) cause each Purchased Subsidiary to dividendexercise, distribute or otherwise pay to Seller or any consistent with the terms and conditions of this Agreement and with applicable Competition Laws, complete control and supervision over its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessSubsidiaries’ respective operations.
Appears in 4 contracts
Samples: Purchase Agreement (Alere Inc.), Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Quidel Corp /De/)
Conduct of the Business. From (a) Except (t) as may be reasonably advisable to carry out any of the transactions contemplated by the Transaction Documents or as set forth on Schedule 5.01, (u) as may be reasonably advisable to satisfy the cure requirements of any of the Assumed Contracts (in consultation with Buyer), (v) as consented to by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (w) as expressly permitted pursuant to the Bid Procedures Motion, Bid Procedures Order, and Bid Procedures or this Agreement, (x) as required or approved by the Bankruptcy Code or any Orders entered by the Bankruptcy Court in the Chapter 11 Cases, including, without limitation, any debtor-in-possession financing order or any order permitting the use of cash collateral, (y) as otherwise necessary to comply with applicable Law, or (z) for any actions taken in good faith as reasonably necessary to respond to COVID-19 (provided, that prior to taking (or abstaining from taking) any action pursuant to this clause (z), Seller shall use commercially reasonable efforts to provide reasonable advance notice to Buyer and consult in good faith with Buyer with respect to the appropriateness of such action or inaction), from the date hereof until the Closing Date, Seller shall use commercially reasonable efforts to conduct the Business in the ordinary course of business. In addition, except as set forth in Schedule 5.01, as expressly otherwise contemplated by applicable Law or by the Transaction Documentsimmediately precedent sentence (but excluding clause (z) thereof), with respect to any Excluded Liability or Excluded Asset, or with Buyer’s without the prior written consent of Buyer (which consent shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not tonot:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise encumber or dispose of any Purchased Assets or assets other than pursuant to the Assumed Contracts in effect as of the Purchased Subsidiaries (other than Non-Business Assets)date hereof or as properly modified, amended, or extended in either case, any interests therein, except (i) pursuant to existing Contracts, or accordance with this Section 5.01;
(ii) otherwise in the ordinary course consistent with past practicemake any modification, amendment, or extension to, or terminate or reject, or grant or agree to any renewal of, any Assumed Contract;
(ciii) create sell, transfer, assign, pledge, lease, license, covenant not to xxx, or otherwise incur xxxxx any Lien on other right to any Purchased Asset or Intellectual Property, including agreeing to amend any asset of licenses to Purchased Intellectual Property contained in any Purchased SubsidiaryContracts, other than Permitted Liens and with respect pursuant to the Purchased SubsidiariesAssumed Contracts in effect as of the date hereof or as properly modified, Liens amended, or extended in accordance with respect to the Non-Business Assetsthis Section 5.01;
(div) incur cancel, abandon, or allow to lapse or expire any capital expendituresPurchased Intellectual Property, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect response to expiration following the Business, other than applicable statutory period for protection of registered Intellectual Property in the ordinary course of business consistent with past practice in business, provided that Seller shall take all material respectscommercially reasonable steps, such as payment of fees, to prevent such cancellation, abandonment or allowance to lapse or expire;
(fv) except as required by Lawwaive, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09cancel, or otherwise waive compromise or release any material rightsaccounts receivable or other payables, or release any rights or claims of value, in each case, relating to or benefits arising under the Assumed Contracts that is in excess of the Business thereunder$50,000;
(gvi) enter into take any Contract (including a hedging action to waive or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than compromise any such Contract entered into material Claims which are included in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesAssets; or
(pvii) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Sequential Brands Group, Inc.)
Conduct of the Business. From the date hereof of this Agreement until the Closing Date(or until the earlier termination of this Agreement in accordance with Section 8.1), except as set forth in Schedule 5.01, as expressly contemplated required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01on Section 4.1 of the Seller Disclosure Letter, as expressly specifically contemplated by this Agreement, including as required to implement the Transaction Documents Restructuring Steps Plan, as required by the Monitoring Trustee or other designated Competition/Investment Law authority or as otherwise waived or consented to in writing by Purchaser (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not cause the Seller Entities and the Purchased Entities (as applicable) to, and shall use its reasonable best efforts to cause its Subsidiaries (including any Purchased Subsidiary) not Rexam to cause the Rexam Entities to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in carry on the ordinary course consistent with past practice (portion of the Business controlled by them in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than respects in the ordinary course of business consistent with past practice and (ii) use its commercially reasonable efforts to maintain and preserve the relationships and goodwill of the Business with its customers, suppliers and others having material business dealings with the Business;
(b) not grant, create, assume or otherwise incur any Encumbrance (other than a Permitted Encumbrance on Purchased Assets that are not the Interests or the Purchased Affiliate Interests) on any of the Purchased Assets or any assets of any Purchased Entity, other than in all the ordinary course of business and other than to the extent such assets will be Excluded Assets;
(c) not sell, transfer or dispose of any material respectsPurchased Assets or material assets of any Purchased Entity, other than the sale of Inventory in the ordinary course of business or in accordance with the Restructuring Steps Plan;
(d) use commercially reasonable efforts to preserve intact the goodwill and the relationships of the Business with its customers, suppliers, distributors, landlords and others having material business dealings with the Business;
(e) not amend the certificate or articles of incorporation or by-laws (or other comparable corporate charter documents) of any of the Purchased Entities or take any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any of the Purchased Entities, file a petition in bankruptcy under any provisions of bankruptcy Law on behalf of any Purchased Entity, Seller Entity or Rexam Entity or consent to the filing of any bankruptcy petition against any Purchased Entity, Seller Entity or Rexam Entity;
(f) except as required by Lawnot authorize, amend issue, sell, grant or modify in otherwise dispose of any material shares of capital stock of or any Option with respect or terminate to any Contract listed in Schedule 3.09of the Purchased Entities, or otherwise waive or release permit any material rights, claims or benefits of the Business thereunderEncumbrances to be imposed on any such shares;
(g) (A) not enter into any new Contract (including a hedging or swap agreement or similar arrangement) that would be required a Material Contract under the definition of Material Contract if entered into prior to the date of this Agreement (and that would be a Purchased Asset and Assumed Liability), other than the renewal of a Material Contract in accordance with its terms or in the ordinary course of business on terms that are not materially less favorable to the Business than the terms of the Material Contract being renewed; or (B) not accelerate, terminate, cancel, amend or otherwise modify any Material Contract in any material respect;
(h) not incur, assume or guarantee any indebtedness for borrowed money other than (i) in an amount not exceeding $50 million in the aggregate or (ii) indebtedness that will be repaid prior to the Closing;
(i) not enter into any hedging arrangement that would be a Purchased Asset or an Assumed Liability that will not be terminated prior to the Closing;
(j) not incur any obligations, Liabilities or indebtedness in respect of capital expenditures to be disclosed incurred after Closing, other than as expressly set forth on Schedule 4.1(j) or in Schedule 3.09 if an amount not exceeding $5 million individually or $40 million in the aggregate;
(k) not settle, pay, discharge or satisfy any material Action where such Contract were settlement, payment, discharge or satisfaction would impose (i) any Liabilities (other than Excluded Liabilities) on the Business or the Purchased Entities in place excess of $2 million individually or $10 million in the aggregate or (ii) material restrictions or limitations upon the operation of the Business following the Closing;
(l) (A) not abandon, fail to maintain or otherwise dispose of any of the Transferred Intellectual Property; and (B) not sell or otherwise dispose of any of the material Seller and Rexam Licensed IP (provided that, for purposes of this Section 4.1(l)(B), the time period limitation in the definition of Seller and Rexam Licensed IP that such Intellectual Property be the applicable Intellectual Property owned by Seller, Rexam or their respective Affiliates as of the Closing Date shall be replaced by such ownership as of the date of this Agreement, it being understood and agreed that, for clarity, all other requirements of such definition shall apply as provided in each case Section 4.10(a)), other than any such Contract entered into in the ordinary course of selling products and services;
(m) except in the ordinary course of business consistent with past practice or as required under the terms of any Employee Benefit Plan, Collective Bargaining Agreement, National Collective Bargaining Agreement or applicable Law, not (i) enter into, adopt or materially amend any material compensation or benefit plan, policy, practice, arrangement or agreement for any Business Employee (other than the adoption of or amendment to a compensation or benefit plan, policy, practice, arrangement or agreement that is generally applicable to employees of the Purchased Entities, Seller Entities or Rexam Entities, as applicable), (ii) materially increase the compensation or benefits payable or to become payable to any Business Employee or (iii) grant any new awards, or amend or modify the terms of any outstanding awards, under any Employee Benefit Plan, in all material respects and on customary termseach case, as it applies to Business Employees;
(hn) enter into except as required by applicable Law, as set forth on Schedule 4.1(n), or as otherwise required in the EC Commitments or by the FTC, not transfer or permit to be transferred any agreement Business Employee, or arrangement that limits or otherwise restricts in offer any material respect Business Employee the Businessopportunity to transfer, Buyer to another business unit of Seller, Rexam or any of their respective Affiliates (including or terminate the Purchased Subsidiaries after the Closing Date), from engaging or competing in employment of any line of business, in any location or with any PersonBusiness Employee other than for cause;
(io) settle, or offer or propose to settle, any material Action involving the Business or relating subject to the transactions contemplated by this Agreementoutcome of the consultations set out in Section 1.9, not enter into or materially amend any Collective Bargaining Agreement or National Collective Bargaining Agreement (or enter into any other material commitment with any Employee Representative Body) covering Business Employees;
(jp) with respect to the extent there would be a material adverse Tax effect on Purchaser or any Purchased SubsidiaryEntity in a Post-Closing Tax Period, make not make, change or revoke any Tax elections, or change any Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, file any amended Tax Return or any Tax Return inconsistent with past practices, file any claims for material Tax refunds, enter into any closing agreement, agreement or similar agreement with respect to Taxes; settle or compromise any Tax claim, audit liability or assessment, or take any affirmative action to surrender any right to claim a Tax refund, offset or other reduction in each case except in the ordinary course of business consistent with past practices in all material respects Tax liability or if such action will have no material effect on the Tax Liability change or agree to any change of the Purchased Subsidiary (value of any real, personal or intangible property for Tax assessment or other than for Pre-Closing Taxes);Tax purposes; and
(kq) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) not enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar an enforceable agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp)
Conduct of the Business. (a) From the date hereof of this Agreement until the earlier of the termination of this Agreement and the Closing Date, except as otherwise expressly provided in this Agreement, set forth in on Schedule 5.01, as expressly contemplated required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded AssetLaw, or with Buyer’s prior written consented to in writing by Buyer (which consent (will not to be unreasonably withheld, conditioned withheld or delayed), Seller shall conduct (i) maintain, and shall cause each Purchased Subsidiary and its Subsidiaries to maintain, its corporate or limited liability company existence, as applicable, (ii) use its commercially reasonable efforts to carry on the Business in the ordinary course consistent with past practice of business and shall substantially in the same manner as previously conducted during the 12 months immediately preceding the date of this Agreement, (iii) use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business Purchased Subsidiaries and their Subsidiaries with customers and material existing or prospective customers, suppliers and other Persons having material business relations with each thereof, and to keep available the services of their employees, and (iv) use its commercially reasonable efforts to maintain insurance coverage for each Purchased Subsidiary and its Subsidiaries equivalent to that maintained on the propertiesdate of this Agreement; provided that, machinery and equipment related notwithstanding the foregoing or anything to the Business contrary in good repair this Agreement, the Purchased Subsidiaries and operation condition their Subsidiaries may use available cash to make distributions to Seller and/or to repay any Indebtedness and Transaction Expenses prior to the Closing.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof of this Agreement until the Closing Date, except as otherwise expressly provided in this Agreement, set forth in on Schedule 5.01, as expressly contemplated required by the Transaction Documents Law, or consented to in writing by Buyer (including the Restructuring) or with Buyer’s prior written which consent (will not to be unreasonably withheld, conditioned withheld or delayed), Seller shall not with respect to the Business, Seller shall not Business and shall cause each Purchased Subsidiary and its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant mortgage, pledge or subject to existing Contracts any Lien, charge or (ii) otherwise in other encumbrance, any material portion of the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinand their Subsidiaries, except (i) pursuant to existing Contracts, or Permitted Liens;
(ii) otherwise sell, assign or transfer any material portion of the tangible assets of any Purchased Subsidiary or its Subsidiaries, except in the ordinary course consistent with past practiceof business;
(ciii) create acquire, lease or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and license (with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Businesslicenses, other than in the ordinary course of business consistent business) any property or asset having a value individually exceeding $300,000.
(iv) sell, assign, transfer, license (with past practice respect to licenses, other than in all the ordinary course of business), abandon, or permit to lapse any Intellectual Property which is material respectsto the conduct of the Business;
(fv) except as required by Lawissue, deliver, sell, pledge, transfer, convey, dispose of, encumber, amend or modify any equity interests, or any class of securities convertible into or exchangeable into equity interests, of any Purchased Subsidiary or its Subsidiaries;
(vi) declare, set aside, make or pay any dividend or other distribution (other than dividends or other distributions of cash) with respect to any equity interests, or any class of securities convertible into or exchangeable into equity interests, of any Purchased Subsidiary or its Subsidiaries;
(vii) make or become legally committed to any new capital expenditure (other than capitalized software development costs) requiring expenditures in excess of $300,000 in the aggregate;
(viii) enter into, renew, extend or amend or modify in any material respect or terminate any Contract listed in Schedule 3.09respect, or otherwise terminate, cancel, compromise, waive or release any material rightsright or claim (or series of related rights or claims) under, claims or benefits any Material Contract, other than as would not adversely impact the operation of the Business thereunderfollowing the Closing;
(gix) settle or dismiss any Action threatened against, relating to or involving any Purchased Subsidiary or its Subsidiaries, except in the ordinary course of business and in an amount not in excess of $100,000 in any individual case, or $300,000 in the aggregate, or in a manner that would prohibit or materially restrict the operation of the Business;
(x) change any material financial or Tax accounting policies, practices, methods or procedures of any Purchased Subsidiary or any Subsidiary thereof, except as required by GAAP or Tax Law, as applicable;
(xi) amend or modify the governing documents of the any Purchased Subsidiary or its Subsidiaries;
(xii) be party to any merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving any Purchased Subsidiary (or any Subsidiary thereof) or the Business;
(xiii) enter into any Contract material closing agreement with respect to Taxes, or settle or compromise any material federal, state, local or foreign Tax liability, or extend the statutory period of limitation applicable to any material Tax Return, of any Purchased Subsidiary or any Subsidiary thereof;
(including a hedging or swap agreement or similar arrangementxiv) that would (A) enter into, adopt, amend (except for such amendments as may be required to be disclosed by Law), renew or terminate (except for such renewals or terminations as may occur automatically under the terms of the Employee Benefit Plan) any Employee Benefit Plan or any other benefit plan or arrangement for the benefit of any current or former director, officer, employee, independent contractor or consultant of any Purchased Subsidiary or any Subsidiary thereof, (B) except as required by the terms of any Employee Benefit Plan as in Schedule 3.09 if such Contract were in place effect as of the date of this Agreement, increase in each case any manner the compensation, bonus or fringe or other than benefits of, or pay any such Contract entered into bonus of any kind or amount whatsoever to, any current or former director, officer, employee, independent contractor or consultant of any Purchased Subsidiary or any Subsidiary thereof; provided, that no equity or equity-based grants shall be made, (C) pay any benefit or amount not required under any Employee Benefit Plan or any other benefit plan or arrangement for the benefit of any current or former director, officer, employee, independent contractor or consultant of any Purchased Subsidiary or any Subsidiary thereof as in effect on the ordinary course date of business consistent with past practice in all material respects and on customary terms;
this Agreement, (hD) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay arrangement or increase in any manner the severance or termination pay of any current or former director, officer, employee, independent contractor or consultant of any Purchased Subsidiary or any Subsidiary thereof, (E) take any action to fund or in any Business other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Employee Benefit Plan (except as may be required in accordance with the terms of any Employee Benefit Plan (or any funding arrangement thereunder) as in effect on the date of this Agreement) or (iiiF) increase take any action to accelerate the vesting or payment of any compensation payable to or benefit under any Business EmployeeEmployee Benefit Plan; provided, in each case other than however, that nothing herein shall prohibit any of the following, and none of the following shall constitute a violation or breach of this Agreement: (1) the hiring of non-officer employees with annual compensation not exceeding $150,000 in the ordinary course of business business, consistent with past practices practice; (2) increases in all material respects compensation or as required by Law;
(m) other than as required by Law or wage rate for non-officer employees in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any business; (3) payment of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than annual cash bonuses in the ordinary course of business; and (4) without limiting the Business consistent generality of the lead-in to this Section 5.01(b) which excludes items contemplated by this Agreement from the restrictions contained in this Section 5.01(b)(xiv), (X) any actions reasonably required in connection with past practice obtaining a shareholder approval as provided in all material respects, Section 5.06 below; or fail to make (Y) any filing, pay any fee, actions reasonably required in connection with the adoption or take any other action necessary to maintain implementation of the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; orTransaction Incentive Plan;
(pxv) agree or commit to do enter into any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Contract with Seller or any of its Affiliates (not including any Purchased Subsidiary or all its Subsidiaries);
(xvi) (A) make any request or demand to any Person to pay any amounts under or in respect of any accounts receivable of the cash Purchased Subsidiaries or their Subsidiaries prior to the stated maturity thereof, (B) make any discharge or forgiveness of any obligations of any obligor with respect to such accounts receivable, (C) defer or delay the payment of any accounts payable of the Purchased Subsidiaries or their Subsidiaries beyond the stated maturity thereof, (D) collect monies from customers or clients of the Purchased Subsidiaries or their Subsidiaries or the Business without delivering related invoices to such customers or clients, or (E) take any other action that is inconsistent with the management of the Net Working Capital of the Purchased Subsidiaries and cash equivalents their Subsidiaries in the ordinary course of such Purchased Subsidiarybusiness; or
(xvii) authorize or enter into any Contract or agreement in furtherance of any of the foregoing. Notwithstanding the foregoing, and without limiting the proviso to Section 5.01(b)(xiv) above, Seller may, in its sole discretion, but after consultation with Buyer, take any of the following actions with respect to options to purchase units of Seller (“Options”) under the Unit Option Plan of Seller (the “Option Plan”): (i) convert Options into unit appreciation rights (“UARs”); (ii) removeaccelerate the vesting and/or exercisability of any UARs and/or Options including, or cause any Subsidiary to removein Seller’s sole discretion, contingent and pay to Seller or any effective upon the occurrence of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Assetthe Closing; and (iii) settle intercompany balances between provide that any Purchased SubsidiaryUARs and/or Options will receive a cash payment upon or following the Closing; (iv) provide that no UARs and/or Options may be exercised after the Closing under any circumstances; (v) any other actions permitted by the terms of the Option Plan or by Law; and/or (vi) any combination of the foregoing; provided, on that Seller shall use its commercially reasonable efforts to cause each of the one handindividuals anticipated to participate in the Transaction Incentive Plan to execute, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, prior to the extent such transfer would hinder or interfere withClosing, or otherwise adversely affect, a Bonus Award Agreement substantially in the ordinary course conduct form of the BusinessExhibit C attached hereto.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Harland Clarke Holdings Corp), Securities Purchase Agreement (M & F Worldwide Corp)
Conduct of the Business. From the date hereof of this Agreement until the earlier to occur of the Closing Dateand the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or expressly contemplated by this Agreement, as set forth in Schedule 5.01Section 5.1 of the Disclosure Schedule, as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (such consent (not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, Seller shall cause the other Seller Parties to, and shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries to, (i) conduct the Business in all material respects in the ordinary course of business consistent with past practices and use commercially reasonable efforts to cause each of the Station Sharing Companies to conduct the Business in the ordinary course of business consistent with past practice practices, (ii) use commercially reasonable efforts to maintain the Station Licenses and shall their respective rights thereunder, (iii) use its commercially reasonable efforts to preserve intact the present in all material respects its current business organizations organization, ongoing businesses and goodwill of the Business, significant relationships with third parties; and (iv) use commercially reasonable efforts to preserve the present relationships of the Business with customers its Employees in accordance with the ordinary course of business and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)consistent with past practice. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof of this Agreement until the earlier to occur of the Closing Dateand the termination of this Agreement in accordance with Article IX, except as otherwise permitted or contemplated by this Agreement, as set forth in Schedule 5.01Section 5.1 of the Disclosure Schedule, as expressly contemplated consented to in writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written such consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business) or as required by applicable Law, Seller shall not not, and shall cause its Subsidiaries not to, and shall use reasonable best efforts (including any Purchased Subsidiaryby seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries not to, in each case, solely in respect of the Business, the Stations or the Purchased Assets:
(a) acquire a material amount sell, assign, license, lease, transfer, abandon or create any Lien (other than any Permitted Lien) on, or otherwise dispose of, any of assets from any the Purchased Assets, other Person except than (i) pursuant to existing Contracts such sales, assignments, licenses, leases, transfers, abandonments, Liens or (ii) otherwise other dispositions that are in the ordinary course consistent of business and are not material to the Business, taken as a whole, (ii) as listed on Section 5.1(a)(ii) of the Disclosure Schedule or (iii) in order to comply with past practice (and in all material respects)accordance with, Section 5.2;
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course of business consistent with past practicepractices (including renewals consistent with the terms thereof), (ii) for those Contracts that can be cancelled by the applicable Seller Party without cause (and without penalty) on less than ninety (90) days’ notice or (iii) as permitted by Section 5.1(c)(i), (A) amend or modify in any material respect or terminate (excluding (1) terminations or renewals upon expiration of the term thereof in accordance with the terms thereof and (2) renewals for a term of one (1) year or less) any Station Agreement, (B) enter into any Contract that would constitute a Station Agreement if in effect on the date hereof (excluding Contracts with a term of one (1) year or less) or (C) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Station Agreement; provided, that in no event shall Seller or Tribune, as applicable, or any of their respective Subsidiaries take any action covered by this Section 5.1(b) with respect to any Station Agreement (x) that is or would be a network affiliation agreement or (y) that relates to the receiving or obtaining of Program Rights;
(c) create other than as required by applicable Law or the existing terms of any Employee Plan or Collective Bargaining Agreement in effect on the date hereof, (i) grant or increase any severance or termination pay to any Employee above the severance or termination pay that would be due under the severance plans of Seller or Tribune, as applicable, in effect as of the date hereof; (ii) enter into or amend any employment, severance or termination agreement with any Employee or hire any Employee except, in each case, in connection with any of the following actions, to the extent taken in the ordinary course of business consistent with past practices (and otherwise incur subject to the other restrictions in this Section 5.1(c)); (w) the hiring of any Lien on on-air talent, producer, news director or general manager with annual base compensation equal to or less than $350,000; (x) the hiring of any Purchased Asset Employee with an annual base compensation equal to or less than $250,000 in order to fill a vacant position; (y) any promotion or increase in duties and responsibilities of an Employee commensurate with a promotion or an increase in duties and responsibilities; or (z) any Contract renewal upon the expiration of an Employment Agreement for Employees who are not executive officers; provided, that such renewal or extension contains substantially similar terms as those in the Employment Agreement of other Employees in such positions or similar positions as have been provided by Seller or Tribune, as applicable, or any asset of their respective Subsidiaries and are made in the ordinary course of business consistent with past practice; or (iii) (A) solely in respect of Employees of Tribune Stations, grant any increase in compensation, bonus or other payments or benefits payable to any Employee, except for merit and annual salary increases and short-term annual bonus payments permitted by the Merger Agreement and (B) solely in respect of Employees of Nexstar Stations, (x) increase in any manner the compensation or consulting fees, bonus, severance or termination pay of any Purchased Subsidiarysuch Employee, other than Permitted Liens and except (1) with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures Employees whose annual base compensation does not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)100,000, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice and (2) with respect to Employees whose annual base compensation is at least $100,000, for increases that do not exceed 5% of aggregate annual compensation for any individual Employee or 3% of aggregate annual compensation for all such Employees, (y) enter into any performance and stay bonuses that will be binding upon Buyer or the Business after the Closing or (z) terminate the employment, other than for cause, of any General Manager or Department Head (for News, Sales and Marketing) of any Station, or transfer, relocate or reassign to another Affiliate of Seller or Tribune any such Employee;
(d) in all material respectsrespect of the Business, materially change the methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP or by any Governmental Authority or applicable Law;
(e) modify or accede to the modification of any of the Station Licenses if doing so is reasonably likely to be materially adverse to the interests of Buyer and its Subsidiaries after giving effect to the consummation of the transactions contemplated by this Agreement in the operation of the Stations or fail to provide Buyer with a copy of (and a reasonable opportunity to review and comment on) any application for the modification of any of the Station Licenses reasonably in advance of filing with the FCC, except, in each case, as required by Law or as required in connection with the broadcast incentive auction, reassignment and repack conducted by the FCC pursuant to Section 4603 of the Middle Class Tax Relief and Job Creation Act (Pub. L. No. 112- 96, §6403, 000 Xxxx. 000, 225-230 (2012)) (the “Incentive Auction & Repack”);
(f) except as required by Law, amend or modify apply to the FCC for any construction permit that would restrict in any material respect the Stations’ operations or terminate any Contract listed in Schedule 3.09, or otherwise waive or release make any material rightschange in the Purchased Assets that is not in the ordinary course of business, claims except as may be necessary or benefits advisable to maintain or continue effective transmission of the Business thereunderStations’ signals within their respective service areas as of the date hereof, except, in each case as required by Law or as required in connection with the Incentive Auction & Repack;
(g) enter into fail to timely make any Contract (including a hedging retransmission consent election with any MVPDs that reported more than 50,000 paid subscribers to Seller, Tribune or swap agreement any of any of their respective Subsidiaries for September 2018 located in or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of serving the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsStations’ Markets;
(h) enter into fail to take any agreement action required to repack or arrangement that limits or otherwise restricts in modify any material respect Station as required by the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;Incentive Auction & Repack; or
(i) settleagree, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree resolve or commit to do any of the foregoing. For the avoidance of doubt, Seller Buyer acknowledges and agrees that: (A) nothing contained in this Agreement shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller give Buyer or any of its Affiliates any Affiliates, directly or all indirectly, the right to control or direct the operations of Seller or Tribune, as applicable, prior to the Closing, (B) prior to the Closing, Seller or Tribune, as applicable, or the Business shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; Stations and (iiiC) settle intercompany balances between notwithstanding anything to the contrary set forth in this Agreement, no consent of Buyer shall be required with respect to any Purchased Subsidiary, on the one hand, and Seller matter set forth in this Section 5.1 or any Retained Subsidiary, on the other hand, and make capital increases elsewhere in connection therewith, except in each case, this Agreement to the extent that the requirement of such transfer consent would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessviolate any applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tegna Inc), Asset Purchase Agreement (Nexstar Media Group, Inc.)
Conduct of the Business. (a) From and after the date hereof Effective Date until the earlier of the termination of this Agreement in accordance with its terms or the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent TMS shall (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct i) carry on the Business in the usual, regular and ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, will use commercially reasonable efforts to preserve intact its current organization, maintain the Purchased Assets and the Business in good condition in a manner consistent with past practice practice, keep available the services of its current officers and shall employees, preserve its relationships with persons having business dealings with it, solicit and process orders for products and services in the ordinary course of business, consistent with past practice, and promptly deliver to Buyer and Parent true and correct copies of any agreements TMS enters into in accordance with the terms of this Agreement; and (ii) use its commercially reasonable efforts to preserve intact the present business organizations and goodwill maintain insurance coverage of the Business, preserve types and in the present relationships amounts carried by it prior to the Effective Date and promptly report all known claims within the applicable claims period.
(b) From and after the Closing Balance Sheet Date until the earlier of the Business with customers termination of this Agreement or the Closing Date, TMS shall not, directly or indirectly, do any of the following without the prior consent of Buyer and suppliers and maintain the propertiesParent (which consent will not be withheld unreasonably) or of their on-site representative:
(i) purchase, machinery and equipment sell, lease or dispose of any material property related to the Business in good repair or Purchased Assets and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) not incur any material liability or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned make any material commitment or delayed), with respect enter into any other material transaction related to the Business, Seller shall not except in the ordinary and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount usual course of assets from any other Person except (i) business or pursuant to contracts existing Contracts or on the Effective Date; (ii) otherwise agree to amend, modify or terminate any existing contract assumed hereunder, whether or not in the ordinary and usual course of business; (iii) acquire any Purchased Assets that are material, in the aggregate, to TMS, taken as a whole, except purchases of Purchased Assets in the ordinary course consistent with past practice of business; (in all material respects);
(bvi) pledge or encumber, sell, lease, license license, dispose of or otherwise dispose of transfer any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect material to the Business, taken as a whole (including any accounts, leases, contracts or intellectual property or any Purchased Assets) other than (A) in the case of pledges, encumbrances and leases, in connection with the purchase of equipment subject to capital lease or other similar financing arrangements in the ordinary course of business consistent with TMS' past practice practice, and (B) dispositions in all material respects;
the ordinary course of business of equipment no longer used in the businesses of TMS; (f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(gvii) enter into an agreement with respect to any Contract acquisition or disposition of all or substantially all of the Purchased Assets (including viii) make any changes in accounting methods, principles or practices or any assumption underlying, or method of calculating, any bad debt, contingency or other reserve, except as may have been required by a hedging change in GAAP or swap agreement applicable law; (ix) waive, modify, pay, discharge, settle or similar arrangement) that would be required to be disclosed satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the in Schedule 3.09 if such Contract were ordinary course of business or in place accordance with their terms as of in effect on the date of this Agreement, unless such payment, discharge, settlement or satisfaction would not reasonably be expected to impose upon TMS any material burden that would remain in each case effect and apply to the Purchased Assets after the Closing, (x) knowingly waive, release or assign any material rights or claims hereunder in a manner adverse to the Business or the Purchased Assets (including any write-off or other than compromise of any such Contract entered into material accounts receivable of TMS related to the Business or the Purchased Assets); (xi) except on a non-exclusive basis in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in business, license any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose intellectual property rights related to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect Purchased Assets to any Purchased Subsidiaryother Person; (xii) permit the prepayment of or compromise or discount any of Account Receivables; (xiii) amend or modify compensation or benefits payable to or for the benefit of any person Buyer has indicated it is considering hiring as an employee, make including any raises in salary or change wages, any Tax election, change modification of any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessmentPlan(s), or TMS' vacation or medical leave of absence policy; or (xiv) authorize any of, or commit or agree, in writing or otherwise, to take any affirmative action to surrender any right to claim a Tax refundof, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller foregoing actions or any of its Subsidiaries with respect to action which would materially impair or prevent the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license satisfaction of any material Business Intellectual Property Right, whether as licensor conditions in Sections 7 or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business8.
Appears in 2 contracts
Samples: Asset Purchase Agreement (TMS Inc /Ok/), Asset Purchase Agreement (TMS Inc /Ok/)
Conduct of the Business. From the date hereof until the earlier of the Closing Dateor the termination of this Agreement in accordance with its terms, except as contemplated or permitted by this Agreement or the Ancillary Agreements or as set forth in Schedule 5.01Section 4.1 of the Seller Disclosure Letter or otherwise requested or consented to in writing by Buyer, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written which consent (shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), (i) Seller shall cause the Company and its Subsidiaries to conduct the Business in all material respects in the ordinary course consistent with past practice and of business, including by making capital expenditures such that the aggregate amount of capital expenditures (which, for the avoidance of doubt, shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated not include any incentive payments made under any Master Service Agreements or customer Contracts) made by the Transaction Documents Company and its Subsidiaries during fiscal year 2013 shall be no less than $35,100,000, and (including the Restructuringii) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause permit the Company or any of its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount amend its certificate of assets from any incorporation or by-laws (or other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respectscomparable organizational documents);
(b) selladopt, leaseenter into, license terminate or otherwise dispose of materially amend any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset Company Benefit Plan or any asset of collective bargaining agreement, labor contract or other written agreement, arrangement with any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur labor union or any capital expenditures, employee organization except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice or as required pursuant to the terms of the applicable plan or agreement or applicable Law; provided, however, that notwithstanding anything in this Agreement to the contrary, prior to the Closing Date, subject to and in compliance with Section 409A of the Code, the Company shall (i) amend the Phantom Plan solely to provide that any and all payments to be made thereunder, which payments shall include payments calculated in respect of the Escrow Amount, shall be made no later than the first payroll date following the Closing Date in the amounts that will be set forth on the Phantom Plan Payment Schedule and (ii) take all steps as may be necessary and appropriate to effect such amendment, including, but not limited to, the obtaining of any necessary waivers and consents from Phantom Plan participants;
(c) except in the ordinary course of business or as required pursuant to the terms of a Company Benefit Plan or applicable Law, (i) grant to any employee or individual independent contractor of the Company or any of its Subsidiaries any increase in compensation or benefits, (ii) accelerate the vesting, payment or funding of any compensation or benefits under any Company Benefit Plan or (iii) engage, promote, terminate or demote any employee or individual independent contractor who as of the date of this Agreement is receiving annualized base salary or wages of $150,000 or more;
(d) 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, or redeem or repurchase any Company Securities or any Subsidiary Securities, except for the Preferred Redemption;
(e) make any material respectschange to the accounting policies or practices presently used by the Company and its Subsidiaries, except as required by GAAP or applicable Law;
(f) except as required by Laweffect any merger, consolidation recapitalization, reclassification, stock split or like change in its capitalization;
(g) amend or modify in any material respect or terminate any Material Contract listed in Schedule 3.09, or otherwise waive Real Property Lease or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required constitute a Material Contract if entered into prior to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreementhereof, except, in each case other than any such Contract entered into case, in the ordinary course of business consistent with past practice in all material respects and on customary termsor as required by applicable Law;
(h) enter into any agreement or arrangement that limits incur, create, assume or otherwise restricts become liable for any Indebtedness, other than (i) trade accounts payable and short-term working capital financing, in any material respect each case, incurred in the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line ordinary course of business, (ii) borrowings under the Credit Facilities and (iii) Indebtedness less than $1,000,000 in any location or with any Personthe aggregate;
(i) settle, subject any of the properties or offer assets (whether tangible or propose to settle, intangible) of the Company or any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect of its Subsidiaries to any Purchased SubsidiaryLien, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)Permitted Liens;
(kj) make sell, assign, transfer, convey, license, sublicense, lease or otherwise dispose of any material change in any method properties, rights or assets of accounting or accounting practice of Seller the Company or any of its Subsidiaries with respect or fail to maintain, abandon, or allow to lapse any Intellectual Property of the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (Company or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employeeof its Subsidiaries, in each case case, (x) other than in the ordinary course of business consistent or (y) with past practices in all respect to obsolete or worthless Intellectual Property;
(k) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or division thereof;
(l) settle, commence or compromise any material respects or as required by LawLitigation;
(m) make, change or revoke any material Tax election; settle or compromise any income or other than material Tax claim or liability; change (or make a request to any Governmental Authority to change) any material aspect of its method of accounting for Tax purposes; waive or extend any statute of limitations in respect of income or other material Taxes or period within which an assessment or reassessment of income or other material Taxes may be issued; or prepare or file any income or other material Tax Return (or any amendment thereof) unless such income or other material Tax Return was prepared in a manner consistent with past practice; except in each case as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesapplicable Law; or
(pn) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (PSAV, Inc.)
Conduct of the Business. From the date hereof until the earlier of the Closing DateDate and the termination of this Agreement, except as set forth in Schedule 5.01, (i) as expressly contemplated by applicable Law or by hereunder, (ii) as the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser shall have consented in writing (which consent (will not to be unreasonably withheld, conditioned or delayed)) or (iii) as set forth on Schedule 6.01, Seller each of the Blocker/Holdco Parties shall, and the Company shall and the Company shall cause its Subsidiaries to, conduct the Business in the ordinary course consistent with past practice of business, and shall (A) use its commercially reasonable efforts to maintain its assets and properties and to preserve intact their current relationships with employees, suppliers, lessees, lessors, payors and others having business dealings with it, (B) manage its Cash and working capital (including the present business organizations timing of collection of accounts receivable and goodwill the payment of accounts payable) in the Businessordinary course of business, preserve (C) continue to make capital expenditures in the present relationships ordinary course of business, (D) use commercially reasonable efforts to assure that each Facility has appropriate Healthcare Permits and renew the Business with customers same, as necessary, and suppliers (E) promptly notify the Purchaser of, and maintain the properties, machinery and equipment related promptly deliver to the Business in good repair and operation condition (subject Purchaser a copy of any written notice the Company or any of its Subsidiaries actually receives, on or before the Closing, from any Governmental Entity, concerning any alleged violation of Healthcare Laws that has not been previously disclosed to normal wear)the Purchaser. Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Dateforegoing, except as set forth in Schedule 5.01, (i) as expressly contemplated by hereunder, including without limitation effectuating the Transaction Documents Pre-Closing Reorganization, (including ii) as the Restructuring) or with Buyer’s prior written consent Purchaser shall have consented in writing (which consent, will not to be unreasonably withheld, conditioned or delayed)) or (iii) as set forth on Schedule 6.01, with respect to without the Businessprior written consent of the Purchaser, each of the Blocker/Holdco Parties shall not, and the Company shall not, and the Company shall not permit its Subsidiaries to, and the Blocker Seller shall not and shall cause its Subsidiaries permit the Blocker Entity or Trilogy Holdings to, directly or indirectly (including any Purchased Subsidiary) not to:whether by merger, consolidation or otherwise):
(a) acquire a material amount of assets from any other Person except (i) pursuant issue, sell or deliver any Equity Interests of the Blocker Entity or Trilogy Holdings, or the Company or any of its Subsidiaries, or issue or sell any securities convertible into, or options with respect to, or warrants to existing Contracts purchase or rights to subscribe for, any Equity Interests of the Trilogy Parties or any of their Subsidiaries, (ii) split, combine, reclassify, repurchase, redeem or otherwise acquire any Equity Interests of any Trilogy Party or any of its Subsidiaries or (iii) except for the E&P Dividend, declare, set aside or pay any dividend or other distribution in the ordinary course consistent with past practice (in all material respects)respect of Equity Interests of any Trilogy Party or any of its Subsidiaries;
(b) sell, lease, license amend the Blocker Entity’s or otherwise dispose Trilogy Holdings Organizational Documents or the Company’s or any of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practiceits Subsidiary’s Organizational Documents;
(c) create sell, assign, or otherwise incur transfer any Lien on any Purchased Asset assets of the Company or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
its Subsidiaries except (dx) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually obsolete or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than worn assets in the ordinary course of business consistent with past practice or (y) immaterial assets in all material respectsthe ordinary course of business;
(d) acquire any assets of any Person except immaterial assets in the ordinary course of business;
(e) make any capital investment in, or any loan or advance to, any Person other than a wholly-owned Subsidiary of the Company;
(f) make any capital expenditures or commitments therefor, except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent or for such capital expenditures or commitments therefor that are set forth in the CapEx Budget;
(g) make any capital expenditures or commitments therefor (whether funded with past practice in all material respects and on customary termsequity or Indebtedness) that would cause the Madison Investment to exceed $15,700,000;
(h) make any loan to, or enter into any agreement or arrangement that limits or otherwise restricts in other transaction with, any material respect the Business, Buyer Seller or any of their respective Affiliates managing members or managing partners or any directors or officers of any Trilogy Party or any of its Subsidiaries (including the Purchased Subsidiaries after the Closing Dateit being understood that this Section 6.01(h) shall not restrict actions with respect to any Plan or Employment Agreement, which actions are covered by Section 6.01(j) below), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated other than as required by this Agreement;
(j) with respect to any Purchased Subsidiaryapplicable Law, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Return, enter into any closing agreement, settle any Tax claim, audit claim or assessment, or take any affirmative action to surrender any right to claim a Tax refund, offset or reduce any Tax liability, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment;
(j) except (i) as otherwise required by an existing Plan, (ii) as required by applicable Law, or (iii) as required by Contracts existing on the date hereof, adopt, enter into, amend, modify or terminate any Plan, Employment Agreement or severance agreement, or increase the benefits provided under any Plan or Employment Agreement, or payment of any vacation pay, sick pay, bonus, severance, incentive, disability, profit sharing or other payments, or otherwise increase in each case any manner the compensation of any officer, director or employee;
(k) hire for new employment or service, except as provided in the Operating Budget, any individual to serve in the position of vice president or higher or any position performing a substantially similar role, or terminate any employee or service provider currently serving in any such position or role without cause;
(l) pay or grant any right to receive any bonus, severance or other special remuneration to any officer, director, employee or consultant except as may be required pursuant to any Employment Agreement or any Plan in effect as of the date hereof consistent with past practices or otherwise as a result of the transactions contemplated by this Agreement;
(m) with respect only to the Blocker/HoldCo Parties, conduct any business or operations or enter into any Contract with any Person;
(n) make any change in accounting methods, principles or practices of any Trilogy Party or any of its Subsidiaries, except insofar as may be required by a change in GAAP; (o) incur, assume or guarantee any Indebtedness or Capitalized Lease Obligation, other than drawdowns under existing Indebtedness in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than Capitalized Lease Obligations in the ordinary course of business consistent with past practices in all material respects or as required by Lawbusiness;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.), Equity Purchase Agreement (NorthStar Healthcare Income, Inc.)
Conduct of the Business. From the date hereof until the Closing Date, except as would constitute a violation of Applicable Law, as set forth in Schedule 5.01on Section 6.01 of the Partner Disclosure Schedule, as expressly contemplated by applicable Law this Agreement or as consented to by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Baker Hughes in writing (which consent (shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), Seller Partner shall use its commercially reasonable efforts to conduct the Partner Contributed Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill relationships with third parties and to keep available the services of the Business, preserve the present relationships employees of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)Partner Contributed Business. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as would constitute a violation of Applicable Law, as set forth in Schedule 5.01on Section 6.01 of the Partner Disclosure Schedule, as expressly contemplated by the Transaction Documents this Agreement or as consented to by Baker Hughes in writing (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toPartner will not:
(a) acquire a (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material amount assets, securities, properties, interests or businesses for the conduct of assets from any the Partner Contributed Business, other Person except (i) pursuant to existing Contracts or (ii) otherwise than in the ordinary course of business consistent with past practice (in all material respects)practice;
(b) make any material modification to a facility related to the Partner Contributed Business or otherwise incur capital expenditures in excess of $150,000 in the aggregate, except in accordance with the capital expenditures plan set forth on Section 6.01(b) of the Partner Disclosure Schedule, and Partner will comply in all material respects with such capital expenditures plan;
(c) sell, lease, license or otherwise dispose of or fail to maintain, enforce or protect any Purchased material Partner Contributed Assets or assets (for the avoidance of the Purchased Subsidiaries (doubt, other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise dispositions of consumables in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of business and dispositions of any Purchased Subsidiary, other than Permitted Liens and with respect assets in an aggregate amount not to the Purchased Subsidiaries, Liens with respect to the Non-Business Assetsexceed $500,000);
(d) incur sell, assign, transfer, lease, grant a license or sublicense to, abandon, permit to lapse or otherwise dispose of any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 Partner Transferred IP other than non-exclusive licenses granted in the aggregateordinary course of business consistent with past practice or take, or fail to take, any action that could reasonably be expected to result in the loss, expiration, lapse or abandonment of any Partner Transferred Patent;
(e) increase the compensation or benefits of the Partner Business Employees other than in connection with actions permitted the ordinary course of business or as required by Section 5.01(aApplicable Law or the terms of any Partner Employee Plan or collective bargaining agreement or settle any material employment-related claims;
(f) other than in the ordinary course of business, hire any new Partner Business Employees or Section 5.01(d)terminate any Partner Business Employees other than for cause;
(g) implement any employee layoffs implicating the WARN Act;
(h) sell, issue, grant, pledge or otherwise transfer, or create or incur any Lien on, any shares or other interests of Allied NewCo, including the Allied NewCo Interests;
(i) amend the organizational documents, or adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, of Allied NewCo;
(j) make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Partner Contributed Business, other than in the ordinary course of business consistent with past practice in all material respectspractice;
(fk) except as required by Lawcreate, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09incur, assume or otherwise waive become liable with respect to any indebtedness for borrowed money with respect to the Partner Contributed Business or release any material rightsguarantees thereof, claims except for trade credit or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into trade payables incurred in the ordinary course of business consistent with past practice in all material respects and on customary termsguarantees of indebtedness incurred under existing credit facilities, which guarantees will be terminated prior to or as of the Closing;
(hl) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Businessconduct of the Partner Contributed Business or that could, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), limit or restrict the Company or any direct or indirect members of the Company (excluding Partner and its Affiliates) from engaging or competing in any line of business, in any location or with any Person;
(i) settlePerson or enter into, amend or offer or propose to settle, modify in any material Action involving respect or terminate any Partner Contributed Contract or otherwise waive, release or assign any material rights, claims or benefits of the Partner Contributed Business under any Partner Contributed Contract, except for commercially reasonable agreements with new customers made at arm’s length and for amendments, terminations or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except non-renewals in the ordinary course of business consistent with past practices in all material respects or or, if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business not consistent with past practices practices, in all material respects or as required by Lawa fashion that is intended to improve the long term profitability of the relationship, including but not limited to improving the prospects for retaining the relationship for a longer period of time;
(m) settle any material litigation, investigation, arbitration, proceeding or other claim involving or against the Partner Contributed Business other than as required by Law settlements involving only monetary payment in an amount not to exceed $250,000 individually or $500,000 in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Planaggregate, or promise any litigation, arbitration, proceeding or dispute that relates to commit to undertake the transactions contemplated hereby or by any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary EmployeesAncillary Agreement;
(n) adopt, approve, consent allow any insurance policies covering the Partner Contributed Assets to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent lapse unless replaced with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesinsurance policies providing substantially similar coverage; or
(po) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Contribution Agreement (BJ Services, Inc.), Contribution Agreement (Baker Hughes Inc)
Conduct of the Business. From (a) During the period from the date hereof until of this Agreement to the earlier of the Closing Dateand the date this Agreement is terminated in accordance with Section 12.1 (the “Interim Period”), except as set forth would not, individually or in Schedule 5.01the aggregate, have a Material Adverse Effect, as expressly contemplated or permitted under this Agreement, as required by applicable Law or by the Transaction DocumentsLaw, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior the written consent of Buyer (which consent shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), or as set forth on Schedule 6.1(a), Seller Parties shall conduct cause the Business in the ordinary course consistent with past practice Company and shall its Subsidiaries to use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of conduct the Business with customers and suppliers and maintain only in the properties, machinery and equipment related to Ordinary Course.
(b) During the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing DateInterim Period, except as set forth would not, individually or in Schedule 5.01the aggregate, have a Material Adverse Effect, as expressly contemplated or permitted under this Agreement, as required by Law, with the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer (which consent shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to the Businessor as set forth on Schedule 6.1(b), Seller shall not and Parties shall cause the Company and its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past commercially reasonable custom and practice associated with companies engaged in all material respectssimilarly situated businesses as the Business, sell, lease, license or otherwise transfer any tangible assets that are material, individually or in the aggregate, to the Business;
(fii) make any material changes in management personnel or increase the compensation level of any management employee, officer or director, except as required by Law, amend any existing Contract or modify in any material respect Employee Benefit Plan and except for normal changes or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into increases in the ordinary course of business consistent with past commercially reasonable custom and practice associated with companies engaged in all material respects and on customary termssimilarly situated businesses as the Business;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices commercially reasonable custom and practice associated with companies engaged in all material respects or similarly situated businesses as required by Lawthe Business, enter into any new capital spending commitments in excess of $50,000 in consideration in the aggregate;
(miv) terminate or cancel any of the insurance policies set forth on Schedule 4.19, unless simultaneously with such termination or cancellation, a replacement policy providing coverage at least equal to the coverage under the terminated or canceled insurance policy for a substantially similar premium is in full force and effect;
(v) except as required (A) to comply with applicable Law, (B) to maintain qualification under Section 401(a) of the Code, or (C) under the provisions of any Employee Benefit Plan, adopt, amend, modify, terminate, or make any contributions to any Employee Benefit Plan;
(vi) amend its articles of incorporation, bylaws or other governing documents in a manner that could reasonably be expected to have an adverse effect on Buyer or the transactions contemplated by this Agreement;
(vii) incur any Indebtedness or guarantee any Indebtedness, except for borrowings incurred in the Ordinary Course;
(viii) repurchase or redeem any of the Shares or any Equity Interests of any Subsidiary of the Company;
(ix) issue, sell or grant any additional Equity Interests;
(x) other than as required by Law or the acquisition of inventory in the ordinary course of business that would not materially increase consistent with commercially reasonable custom and practice associated with companies engaged in similarly situated businesses as the costs amend Business, acquire, or terminate agree to acquire, by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any Employee Plan other manner, any business or International Plan any corporation, partnership, joint venture, association or adopt other business organization or division thereof;
(xi) enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on material transaction with any Affiliate not dealing at arm’s length with the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller Company or any of its Subsidiaries; or
(pxii) enter into a Contract, or otherwise agree or commit commit, to do take any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessforegoing actions.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Hawkeye Systems, Inc.), Stock Purchase Agreement (Hawkeye Systems, Inc.)
Conduct of the Business. From Each of the Company and Parent covenants and agrees that:
(a) Except as expressly contemplated by this Agreement (including as contemplated by the PIPE Facility) or the Additional Agreements or as set forth on Schedule 6.1(a), from the date hereof until the earlier of the Closing Date, except as set forth Date and the termination of this Agreement in Schedule 5.01, as expressly contemplated by applicable Law or by accordance with its terms (the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed“Interim Period”), Seller each party shall (I) conduct the Business its business only in the ordinary course (including the payment of accounts payable and the collection of accounts receivable), consistent with past practice practices, and shall (II) use its commercially reasonable efforts to preserve intact the present its business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)assets. Without limiting the generality of the foregoing foregoing, and subject to except as expressly contemplated by this Agreement (including as contemplated by the PIPE Facility) or the Additional Agreements, or as set forth on Schedule 6.1(a) or as required by applicable Law, from the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with its terms, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyerother party’s prior written consent (which shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to neither the BusinessCompany, Seller Parent, nor any of its Subsidiaries, shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not permit to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts amend, modify or supplement its certificate 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, any (A) in the case of the Company, any Material Contract or (B) in the case of Parent, material contract, agreement, lease, license or other right or asset of Parent, as applicable;
(iii) other than in the ordinary course of business consistent with past practice practice, modify, amend or enter into any contract, agreement, lease, license or commitment, including for capital expenditures, that extends for a term of one year or more or obligates the payment by the Company or Parent, as applicable, of more than $1,000,000 (individually or in all material respectsthe aggregate);
(biv) make any capital expenditures in excess of $500,000 (individually or in the aggregate);
(v) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets)Company’s or Parent’s, or in either caseas applicable, any interests thereinmaterial assets, except (i) pursuant to existing Contracts, contracts or (ii) otherwise in the ordinary course consistent with past practice;
(c) create commitments disclosed herein or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectspractice;
(fvi) (A) pay, declare or promise to pay any dividends, distributions or other amounts with respect to its capital stock or other equity securities; (B) pay, declare or promise to pay any other amount to any stockholder or other equityholder in its capacity as such; and (C) except as contemplated hereby or by any Additional Agreement, amend any term, right or obligation with respect to any outstanding shares of its capital stock or other equity securities;
(vii) (A) make any loan, advance or capital contribution to any Person; (B) incur any Indebtedness including drawings under the lines of credit, in the case of the Company, in excess of an aggregate principal amount of $250,000 or such lesser amount if the aggregate principal amount of such new Indebtedness together with the aggregate principal amount all other Indebtedness of the Company would exceed $1,000,000 other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus, (2) extension financing incurred by Parent and (3) intercompany Indebtedness; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof;
(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 (other than, in the case of the Company, in the ordinary course of business consistent with past practice);
(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, 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;
(xii) institute, settle or agree to settle any Action before any Authority, in each case in excess of $500,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on such party;
(xiii) except as required by LawU.S. GAAP, amend or modify in make any material respect change in its accounting principles, methods or terminate any Contract listed in Schedule 3.09, practices or otherwise waive or release any material rights, claims or benefits write down the value of the Business thereunderits assets;
(gxiv) change its principal place of business or jurisdiction of organization;
(xv) except in connection with the exercise of rights under the terms of any of the Company Preferred Stock, Subsidiary Capital Stock, Company Options, Company Warrants or Company Convertible Notes, or with respect to the PIPE Facility, 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 any redemption by Parent of shares of Parent Common Stock and Parent Units held by its public stockholders, in connection with the Subscription Agreements or as otherwise contemplated herein or in any Additional Agreement;
(xvi) (A) make, change or revoke any material Tax election; (B) change any material method of accounting; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes ; (D) enter into any Contract Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract a contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
practices, the primary purpose of which is not related to Taxes); (hE) enter into any agreement surrender or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender forfeit any right to claim a material Tax refund, or (F) take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably be expected to prevent or impede, the Intended Tax Treatment;
(xvii) enter into any transaction with or distribute or advance any material assets or property to any of its Affiliates, other than (A) the payment of salary and benefits in each the ordinary course; or (B) with Affiliates of such Person that are consolidated in the financial statements a Party;
(xviii) solely in the case of the Company, other than as required by Law, by a Plan, or in the ordinary course of business, (A) increase the compensation or benefits of any employee of the Company at the level of an executive officer (SVP or above), except for annual compensation increases in the ordinary course of business consistent with past practices practices, (B) accelerate the vesting or payment of any compensation or benefits of any employee or service provider of the Company, (C) enter into, amend or terminate any Plan (or any plan, program, agreement or arrangement that would be a Plan if in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary date hereof) or grant, amend or terminate any awards thereunder, (other than for Pre-Closing Taxes);
(kD) make any material change in loan to any method of accounting present or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement former employee or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)individual service provider of the Company, (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than advancement of expenses in the ordinary course of business consistent with past practices in all material respects or as required by Law;
practices, (mE) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend terminate any Bargaining Agreement collective bargaining agreement or recognize any other agreement with a labor union or labor organization; or (F) adopt any severance, retention or other labor organization as employee plan or fail to continue to make timely contributions to each Plan in accordance with the bargaining representative for any Business Employees or Purchased Subsidiary Employeesterms thereof;
(nxix) adopt, approve, consent to or propose any change solely in the respective Organizational Documents case of Seller Parent, hire or offer to hire any of additional employees, or engage or offer to engage any consultant, independent contractor, or service provider (except for such employees, independent contractors, or service providers who will exclusively perform services for the Purchased SubsidiariesParent before and after the Closing);
(oxx) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than solely in the ordinary course case of the Business consistent with past practice Company, hire or offer to hire any senior level executive, unless an officer of Parent is part in all material respects, or the interview committee;
(xxi) fail to make duly observe and conform to any filing, pay any fee, or take any other action necessary to maintain the ownership, validity applicable Laws and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesOrders; or
(pxxii) agree or commit to do any of the foregoing. For .
(b) Neither party shall (i) take or agree to take any action that would be reasonably likely 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 avoidance of doubtClosing Date or (ii) omit to take, Seller or agree to omit to take, any action necessary to prevent any such representation or warranty from being inaccurate or misleading in any respect at any such time.
(c) Notwithstanding the foregoing, the Company and Parent, and its Subsidiaries, shall be permitted to (i) cause each Purchased Subsidiary take any and all actions required to dividendcomply in all material respects with the quarantine, distribute or otherwise pay to Seller “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any of other 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.
(d) Nothing in this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Outside Closing Date, and nothing in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Affiliates any or all Subsidiaries’ operations prior to the Outside Closing Date. Prior to the Outside Closing Date, each of the cash Company, Parent and cash equivalents Merger Sub shall exercise, consistent with the terms and conditions of such Purchased Subsidiary; (ii) removethis Agreement, or cause any Subsidiary to remove, complete control and pay to Seller or any of supervision over its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessits Subsidiaries’ respective operations.
Appears in 2 contracts
Samples: Merger Agreement (Viveon Health Acquisition Corp.), Merger Agreement (Clearday, Inc.)
Conduct of the Business. From the date hereof until the Initial Closing Date, except (a) as set forth in Schedule 5.01, as expressly contemplated required by applicable Law Law, (b) as necessary to effectuate the transfer of the Purchased Subsidiaries and Purchased Assets, (c) as otherwise expressly permitted or by the required under any Transaction DocumentsDocument, with respect to any Excluded Liability or Excluded Asset, or (d) with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)) or (e) would otherwise have been required to be set forth on Schedule 4.07 had it occurred after the Financial Statement Date and prior to the date hereof, Seller shall, and shall cause its Subsidiaries to, conduct the Business in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business Leased Real Property in good repair and operation operating condition (subject to normal wearwear and casualty or condemnation excepted). For the avoidance of doubt, Seller shall be permitted to (x) collect all cash from the Restaurants prior to the Initial Closing Date and (y) receive and retain all payments related to the Business prior to the Initial Closing Date. Notwithstanding anything to the contrary in this Agreement, Buyer may not, prior to or on the Initial Closing Date, control, manage or otherwise interfere with the Seller’s conduct of the Business. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Initial Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any material Purchased Assets Asset or assets material asset of the Purchased Subsidiaries (other than Non-Business Assets)Subsidiaries, or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course of business consistent with past practicepractice in all material respects;
(cb) create or otherwise incur any Lien on any material Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and Liens;
(c) incur any capital expenditures with respect to the Purchased SubsidiariesBusiness, Liens with respect except pursuant to the Non-Business Assetsexisting Contracts;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a6.01(c) or Section 5.01(d)as otherwise contemplated by this Agreement, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(ge) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 4.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsother than any Replacement Contracts;
(hf) except as required by Law or to create a Replacement Contract, amend or otherwise modify in any material respect any Material Contract, other than any amendment or modification entered into in the ordinary course of business or containing terms, taken as a whole, not materially less favorable to the Business than the terms of any similar Material Contract in effect as of the date of this Agreement;
(g) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer Business or any of their respective Affiliates (including the Purchased Subsidiaries after the Initial Closing Date), Date from engaging or competing in any line of business, in any location or with any Person;
(ih) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement, other than any Excluded Liability or in the ordinary course of business consistent with past practice in all material respects;
(ji) with respect to any Purchased Subsidiary, make (except in the ordinary course of business), change or change revoke any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any material closing agreement or other Tax related agreement, settle any material Tax claim, audit or assessment, or file any material amended Tax Return, take any affirmative action to surrender any right to claim a material Tax refund, extend any applicable statute of limitations (other than at the Seller Group level), in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material adverse effect on the Tax Liability of Buyer or its Affiliates (including the Purchased Subsidiary (other than for PreSubsidiaries) in a Post-Closing Taxes)Tax Period;
(kj) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAPGAAP or other applicable accounting standards;
(lk) except as required by applicable Law or the terms of an existing Contract or Employee Plan as of the date of this Agreement: (i) enter into any Bargaining Agreement, collective bargaining agreement or any employment, deferred compensation, severance, termination, retention, change in control, sales bonus, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement, except that such agreements may be assigned to the Purchased Subsidiaries), (ii) adopt any new employee benefit plan or arrangement covering any Business Employee, or (iii) materially amend or modify any existing Employee Plan for the benefit of the Business Employees, other than as provided under amendments or modifications that are generally applicable to all of Seller’s employees and that do not result in increased cost with respect to the Severance Plan, Business Employees of $50,000 or more;
(l) grant any new severance increase in the rates or termination pay terms of compensation payable, or to become payable, to any Business Employee or (iii) including any such increase the compensation payable pursuant to any Business EmployeeEmployee Plan), in each case other than in the ordinary course of business consistent with past practices in all material respects or except as required by any labor or other agreement or Employee Plan in effect as of the date hereof or by applicable Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries, including, for the avoidance of doubt, in connection with the Conversions;
(n) amend, extend, renew or terminate any Lease or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property;
(o) negotiate abandon or enter into any license permit the lapse of any material Transferred Business Intellectual Property Right, whether as licensor that is registered or as licensee, other than in issued or the ordinary course subject of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesa pending application; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Conduct of the Business. (a) From the date hereof until the Closing Date, the Company shall use its commercially reasonable efforts to carry on its business (and cause its Subsidiaries’ to carry on their respective businesses) in the ordinary course of business and substantially in the same manner as currently conducted.
(b) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated otherwise provided for by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetthis Agreement, or with Buyer’s prior written consented to in writing by Buyer (which consent (shall not to be unreasonably withheld, conditioned withheld or delayed), Seller the Company shall conduct the Business in the ordinary course consistent with past practice not, and shall use not permit its commercially reasonable efforts to preserve intact the present business organizations Subsidiaries to, take any action which, if taken after January 1, 2013 and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related prior to the Business in good repair and operation condition date hereof, would have been required to be disclosed on Schedule 3.2(g).
(subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from c) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by each of the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Company and its Subsidiaries and Parent and its Subsidiaries shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except fail to (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
; (cii) create timely pay all material Taxes due and payable; and (iii) promptly notify the Buyer (in the case of the Company) or otherwise incur any Lien on any Purchased Asset or any asset the Sellers’ Representative (in the case of Parent) of any Purchased Subsidiarymaterial income, franchise or similar (or other than Permitted Liens and material) Tax claim, investigation or audit pending against or with respect to each of the Purchased SubsidiariesCompany and its Subsidiaries and Parent and its Subsidiaries in respect of any material Tax matters, Liens with respect including material Tax liabilities and material Tax refund claims. From the date hereof until the Closing Date, neither the Company nor its Subsidiaries shall cause the Company to the Non-Business Assets;be treated as an association taxable as a corporation for Tax purposes.
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to From the date of this Agreement and unbudgeted capital expenditures hereof until the Closing Date, the Company shall not to exceed $100,000 individually (without the consent Parent or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging Affiliates) distribute or competing in dividend any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating Cash to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessSellers.
Appears in 2 contracts
Samples: Merger Agreement (SFX Entertainment, INC), Merger Agreement (SFX Entertainment, INC)
Conduct of the Business. (a) From the date hereof until the Closing Date, except as set forth in Schedule 5.01on the attached Conduct of Business Schedule, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and Company shall use its commercially reasonable efforts to preserve intact carry on its and its Subsidiaries’ businesses according to its ordinary course of business and substantially in the present business organizations and goodwill of same manner as heretofore conducted; provided that, the Businessforegoing notwithstanding, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related Company may use all available cash to repay any Seller Transaction Expenses or Indebtedness prior to the Business in good repair and operation condition Closing.
(subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from b) From the date hereof until the Closing Date, except as otherwise provided for by this Agreement or consented to in writing by Buyer, the Company shall not, and shall not permit any of its Subsidiaries to, intentionally take any action which, if taken after the date of the Latest Balance Sheet, would be required to be disclosed on the Developments Schedule pursuant to Section 4.06.
(c) From the date hereof until the Closing Date, the Company shall not, and shall cause its Subsidiaries to not, permit the modification of any of the insurance policies set forth in on the attached Insurance Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer.
(d) Prior to the Closing Date, the Company shall enter into the Intercompany Agreement with Xxxxxxx Canada, Inc., in the form attached hereto as Exhibit H (the “Intercompany Agreement”) and shall deliver a copy of such fully-executed Intercompany Agreement to Buyer and shall comply with the terms thereof.
(e) From the date hereof through the Closing Date, the Company shall not, and shall cause its Subsidiaries to not, permit any amendment, waiver or other modification of any or all of the Audax Acquisition Documents, or release any amounts held in escrow or by the Company or any Subsidiary pursuant to the terms of any such documents or otherwise in connection therewith, without the prior written consent of Buyer, except the Company may release funds in the 2007 Escrow Agreement, provided further that the balance of the Audax Escrow Funds shall not be less than $1,000,000.
(f) From the date hereof through the Closing, the Company shall cause the applicable Subsidiaries thereof to retain sufficient cash in an amount not to exceed $1,595,000 to enable such Subsidiaries to make the estimated Income Tax payments set forth on the April and May 2010 Estimated Tax Payments Schedule for such Subsidiaries with respect to the Pre-Closing Tax Period to the extent such estimated Income Tax payments have not been made prior to the Closing Date (such retained cash on the Closing Date being the “Reserved Estimated Tax Payment Cash”). The Company will promptly, but in any event within 60 days of the Closing Date, determine the actual amount of Income Tax liability applicable to April 2010 and, to the extent prior to Closing, May 2010, for such Subsidiaries, which determination will be subject to Seller’s approval not to be unreasonably withheld, conditioned or delayed), and will pay in cash any such amounts to Seller to the extent the Reserved Estimated Tax Payment Cash plus any Income Tax payments made for April and May 2010 prior to the Closing with respect to such Subsidiaries exceed the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material actual amount of assets from any other Person except (i) pursuant Income Tax allocable to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and such period with respect to such Subsidiaries set forth on the Purchased SubsidiariesApril and May 2010 Estimated Tax Payments Schedule. For purposes of this Section 6.01(f), Liens the determination of the Taxes of the Company or such Subsidiary for the period including April and May 2010 shall be determined on a “closing of the books basis” by treating such period as two partial periods, one ending at the close of the earlier of May 31, 2010 or the Closing Date and the other beginning on the day after such date, except that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis, provided, however, that the amount of Taxes for such period shall be reduced by the amount of estimated Tax payments that have been made with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Conduct of the Business. From the date hereof of this Agreement until the earlier to occur of the Closing Dateand the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or expressly contemplated by this Agreement, as set forth in Schedule 5.01Section 5.1 of the Disclosure Schedule, as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (such consent (not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, Seller shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries to (i) conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices and use commercially reasonable efforts to cause each of the Station Sharing Companies to conduct the Business in the ordinary course of business consistent with past practices, (ii) use reasonable best efforts to maintain the Station Licenses and their respective rights thereunder, (iii) use reasonable best efforts to preserve intact in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries respects, with respect to the Business, its current business organization, ongoing businesses and significant relationships with third parties, and (iv) use reasonable best efforts to preserve the relationships of the Business with its employees in accordance with the ordinary course of business and consistent with past practice. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article IX, except as otherwise permitted or contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Schedule, as consented to in writing by Buyer (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Seller shall not, and shall cause its Subsidiaries not to, and shall use reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries not to, in each case, solely in respect of the Business, the Stations or the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;Assets:
(la) sell, assign, license, lease, transfer, abandon or create any Lien (other than any Permitted Lien) on, or otherwise dispose of, any of the Purchased Assets, other than (i) enter into any Bargaining Agreementsuch sales, employmentassignments, deferred compensationlicenses, severanceleases, retirement transfers, abandonments, Liens or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment dispositions that are in the ordinary course of business and are not material to any such existing agreement)the Business, taken as a whole, (ii) other than as provided under listed on Section 5.1(a)(ii) of the Severance Plan, grant any new severance or termination pay to any Business Employee Disclosure Schedule or (iii) increase the compensation payable in order to any Business Employeecomply with and in accordance with, in each case Section 5.2;
(b) other than (i) in the ordinary course of business consistent with past practices (including renewals consistent with the terms thereof), (ii) for those Contracts that can be cancelled by Seller or Tribune, as applicable, or any of their respective Subsidiaries without cause (and without penalty) on less than ninety (90) days’ notice or (iii) as permitted by Section 5.1(c)(i), (A) amend or modify in all any material respects respect or terminate (excluding (1) terminations or renewals upon expiration of the term thereof in accordance with the terms thereof and (2) renewals for a term of one (1) year or less) any Station Agreement, (B) enter into any Contract that would constitute a Station Agreement if in effect on the date hereof (excluding Contracts with a term of one (1) year or less) or (C) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Station Agreement; provided, that in no event shall Seller or Tribune, as required applicable, or any of their respective Subsidiaries take any action covered by Lawthis Section 5.1(b) with respect to any Station Agreement (x) that is or would be a network affiliation agreement or (y) that relates to the receiving or obtaining of Program Rights;
(mc) other than as required by applicable Law or the existing terms of any Employee Plan or Collective Bargaining Agreement in effect on the date hereof, (i) grant or increase any severance or termination pay to any Employee above the severance or termination pay that would be due under the severance plans of Seller or Tribune, as applicable, in effect as of the date hereof; (ii) enter into or amend any employment, severance or termination agreement with any Employee or hire any Employee except, in each case, in connection with any of the following actions (and with respect to hiring new Employees as permitted by clauses (w) and (x) below), to the extent taken in the ordinary course of business that would not materially increase consistent with past practices (and otherwise subject to the costs amend other restrictions in this Section 5.1(c)); (w) the hiring of any on-air talent, producer, news director or terminate general manager with annual base compensation equal to or less than $350,000; (x) the hiring of any Employee with an annual base compensation equal to or less than $250,000 in order to fill a vacant position; (y) any promotion or increase in duties and responsibilities of an Employee commensurate with a promotion or an increase in duties and responsibilities; or (z) any Contract renewal upon the expiration of an Employment Agreement for Employees who are not executive officers; provided, that such renewal or extension contains substantially similar terms as those in the Employment Agreement of other Employees in such positions or similar positions as have been provided by Seller or Tribune, as applicable, or any of their respective Subsidiaries and are made in the ordinary course of business consistent with past practice; (iii) establish, adopt, terminate or amend any (A) other Employee Plan or International Plan or adopt or enter into (including any plan plan, agreement or arrangement that would be considered an a Employee Plan or International Plan if it were in existence effect on the date hereof hereof) or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any (B) except as a result of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any good-faith negotiations with a labor union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business business consistent with past practice practice, Collective Bargaining Agreement; (iv) take any action to accelerate the vesting or payment, or fund or secure the payment, of compensation (including any equity-based compensation) or benefits of any Employee under a Employee Plan or otherwise; or (v) except as set forth on Section 5.1(c)(v) of the Disclosure Schedule, grant any increase in all material respectscompensation, bonus or other payments or benefits payable to any Employee, except for (A) merit and annual salary increases as set forth on Section 5.1(c)(v) of the Disclosure Schedule and (B) short-term annual bonus payments, in each case, in the ordinary course of business consistent with past practices and as permitted by Section 6.2 of this Agreement;
(d) in respect of the Business, materially change the methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP or by any Governmental Authority or applicable Law;
(e) modify or accede to the modification of any of the Station Licenses if doing so is reasonably likely to be materially adverse to the interests of Buyer and its Subsidiaries after giving effect to the consummation of the transactions contemplated by this Agreement in the operation of the Stations or fail to provide Buyer with a copy of (and a reasonable opportunity to review and comment on) any application for the modification of any of the Station Licenses reasonably in advance of filing with the FCC, except, in each case, as required by Law or as required in connection with the broadcast incentive auction, reassignment and repack conducted by the FCC pursuant to Section 4603 of the Middle Class Tax Relief and Job Creation Act (Pub. L. No. 112- 96, §6403, 000 Xxxx. 000, 225-230 (2012)) (the “Incentive Auction & Repack”);
(f) apply to the FCC for any construction permit that would restrict in any material respect the Stations’ operations or make any filingmaterial change in the Purchased Assets that is not in the ordinary course of business, pay any fee, except as may be necessary or take any other action necessary advisable to maintain or continue effective transmission of the ownershipStations’ signals within their respective service areas as of the date hereof, validity and enforceability of except, in each case as required by Law or as required in connection with the Incentive Auction & Repack;
(g) fail to timely make any material Business Patents or Business Trademarks owned by Seller retransmission consent election with any MVPDs that reported more than 50,000 paid subscribers to Seller, Tribune or any of its Subsidiariesany of their respective Subsidiaries for September 2018 located in or serving the Stations’ Markets;
(h) fail to take any action required to repack or modify any Station as required by the Incentive Auction & Repack; or
(pi) agree agree, resolve or commit to do any of the foregoing. For the avoidance of doubt, Seller Buyer acknowledges and agrees that: (A) nothing contained in this Agreement shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller give Buyer or any of its Affiliates any Affiliates, directly or all indirectly, the right to control or direct the operations of Seller or Tribune, as applicable, prior to the Closing, (B) prior to the Closing, Seller or Tribune, as applicable, or the Business shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; Stations and (iiiC) settle intercompany balances between notwithstanding anything to the contrary set forth in this Agreement, no consent of Buyer shall be required with respect to any Purchased Subsidiary, on the one hand, and Seller matter set forth in this Section 5.1 or any Retained Subsidiary, on the other hand, and make capital increases elsewhere in connection therewith, except in each case, this Agreement to the extent that the requirement of such transfer consent would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessviolate any applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Nexstar Media Group, Inc.)
Conduct of the Business. From and after the date hereof until the Relevant Closing Date, except as set forth in on Schedule 5.01, as expressly required by applicable Law, as specifically permitted or contemplated by applicable Law this Agreement or by the other Transaction Documents, with respect as may be reasonably required to any Excluded Liability effectuate and complete the Restructurings or Excluded Asset, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Sapphire shall, and Sapphire shall cause the Sellers, Transferred Entities and, to the extent Relating to the Businesses, each other Affiliate of Sapphire to, use commercially reasonable efforts to (x) conduct the Business Businesses in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to practice, (y) preserve intact the present business organizations and goodwill of the Business, preserve Businesses and the Transferred Entities and the present relationships of the Business Businesses with customers and customers, employees, suppliers and others having business dealings with the Businesses and the Transferred Entities and (z) maintain the properties, machinery and equipment related to the Business keep in good repair (ordinary wear and operation condition tear excepted) the material properties and assets of the Businesses and the Transferred Entities (subject provided, that, (X) the consent of Buyer shall not be required pursuant to normal wearthis Section 5.01 in respect of any COVID-19 Measures and (Y) this shall not require Sapphire, the Sellers, the Transferred Entities or any of their respective Affiliates to take any action otherwise prohibited to be taken without Buyer’s consent pursuant to this Agreement). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Relevant Closing Date, except as set forth in on Schedule 5.01, as expressly required by applicable Law, as specifically permitted or contemplated by the Transaction Documents this Agreement (including in respect of the Restructuring) or the other Transaction Documents, as may be required to effectuate and complete the Restructurings, in respect of any COVID-19 Measures, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), solely with respect to the BusinessBusinesses, Seller Sapphire shall not (in respect of the Business), and Sapphire shall cause the Sellers, Transferred Entities and its Subsidiaries other Affiliates not to (including any Purchased Subsidiary) not toin respect of the Business), directly or indirectly:
(a) acquire a material amount amend, modify or waive the Organizational Documents of assets from any other Person Transferred Entity, except (i) pursuant to existing Contracts for such amendments, modifications or (ii) otherwise waivers in connection with changes in the ordinary course consistent directors or officers of a Transferred Entity or to change the name of the Transferred Entities in accordance with past practice (in all material respectsSection 5.08(c);
(b) merge or consolidate any Transferred Entity with, or purchase any of the stock or all or substantially all of the assets of, or otherwise acquire the businesses of, any other Person or adopt a new plan or agreement of complete or partial liquidation, dissolution, restructuring, consolidation, recapitalization or other reorganization affecting the Businesses, except any transaction between or among wholly owned Transferred Entities;
(c) (i) authorize for issuance, issue, grant, sell, leasedeliver, license split, combine, reclassify, redeem, purchase, dispose of, pledge or otherwise encumber any of the Equity Interests or any other capital stock or equity interests of any Transferred Entity or (ii) become a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the Equity Interests or any other capital stock or equity interests of a Transferred Entity, except in the case of this clause (ii) for any transaction between or among wholly owned Transferred Entities;
(d) sell, transfer, lease or otherwise dispose of any Purchased Transferred Assets or assets of the Purchased Subsidiaries any Transferred Entity (other than Non-Business Assets), in each case, which is or are material, individually or in either casethe aggregate, any interests thereinto the Businesses, except any transaction between or among wholly owned Transferred Entities (i) pursuant or of Transferred Assets from a Retained Entity to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practicea Transferred Entity);
(ce) except pursuant to Contracts in existence as of the date hereof, create or otherwise incur any Lien on any Purchased Transferred Asset or any asset Equity Interests or other capital stock, or assets, of any Purchased SubsidiaryTransferred Entity, other than Permitted Liens, Liens and fully released at or before Closing and, with respect to the Purchased SubsidiariesTransferred Entities, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Lawin accordance with the last sentence of this Section 5.01, amend declare, pay or modify set aside any dividend or other distribution (whether in cash, stock or property or any material combination thereof), in respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunderEquity Interests or any other capital stock or equity interests of a Transferred Entity, except any transaction between or among wholly owned Transferred Entities;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)policy, except for any such change as required by reason of a concurrent change in Law or GAAP;
(lh) assign, or adjust the duties or responsibilities of, any employee or worker of Sapphire or its Subsidiaries or Joint Ventures who is not an Identified Employee, such that such employee will become exclusively or primarily engaged in the Businesses (except to replace an Identified Employee whose employment has terminated prior to Closing), or remove or adjust the duties or responsibilities of, any Identified Employee, in each case, such that such Identified Employee will no longer be exclusively or primarily engaged in the Businesses;
(i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices practice (including but not limited to any changes in all material respects relation to the Annual Review Process, subject to Section 7.15): (i) increase the compensation or as required by Law;
benefits payable to any current or former Identified Employee or independent contractor of any Transferred Entity, (mii) other than grant any new bonus, equity or equity-based compensation, retention, severance, termination pay or similar compensation to any such individual, (iii) enter into or amend any employment, consulting, indemnification, severance, retention, change in control, termination or similar agreement with any such individual; (iv) provide for any discretionary payment or benefit under any Employee Plan; (v) provide for the acceleration of funding under any Assumed Employee Plan, or (vi) grant or accelerate the vesting of any incentive or benefit for any such individual, except, in each case, (A) as required by Law or the terms of any Employee Plan as in effect as of the date hereof or (B) in connection with renewals of Bargaining Agreements that are set to expire prior to the Relevant Closing Date;
(j) adopt or enter into any new Assumed Employee Plan or any other employee benefit plan, program or policy for the benefit or welfare of any current or former Identified Employee or independent contractor of the Transferred Entities or amend or modify or terminate any existing Assumed Employee Plan or any other employee benefit plan, program or policy for the benefit or welfare of any current or former Identified Employee or independent contractor of the Transferred Entities, except (i) as required by Law or the terms of any Assumed Employee Plan or any Contract in existence on the date hereof or (ii) to the extent not resulting in any material increase in cost to the Transferred Entities or Buyer, in connection with renewals of any Assumed Employee Plans (including replacement of such plans with an equivalent from a different service provider) and Bargaining Agreements;
(k) enter into or amend any Bargaining Agreement or, through negotiation or otherwise, make any binding commitment to any labor organization with respect to any Identified Employees, except (i) as required by Law or (ii) in connection with renewals of Bargaining Agreements in the ordinary course of business that would do not materially increase aggregate costs by more than 3% per annum;
(l) hire, promote (other than in connection with the costs amend Annual Review Process, subject to Section 7.15) or terminate (other than for cause) the employment of any Identified Employee Plan whose annual base compensation exceeds, or International Plan would exceed following the hiring or adopt promotion of such individual, $250,000 per annum or enter into transfer from any plan Transferred Entity the services of any Identified Employee or arrangement transfer to any Transferred Entity any employee of Sellers or any of its Subsidiaries (other than any Identified Employee);
(m) take any action that would be considered an require (i) any Transferred Entity to provide notice under the WARN Act; or (ii) any Identified Employee Plan to receive any notice under the WARN Act;
(n) make any loans or International Plan if it were advances to, or equity investments in, any Person, except (i) intercompany loans and intercompany debt arrangements, (ii) to or in wholly-owned Transferred Entities, and (iii) advancement of trade credit to customers or expenses to employees in the ordinary course of business and consistent with past practice;
(i) permit or authorize any of the Transferred Entities to make any individual capital expenditures in excess of $100,000, except for capital expenditures (A) in the ordinary course of business or (B) pursuant to Contracts in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise (ii) fail to commit to undertake any of the foregoing make capital expenditures in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesordinary course of business consistent with past practices;
(np) adoptwith respect to the Transferred Entities, approve, consent (i) enter into any material closing agreement or similar agreement relating to Taxes (ii) request any ruling or propose any similar guidance with respect to Taxes or (iii) change in the respective Organizational Documents of Seller or any of the Purchased Subsidiariesits residence for Tax purposes;
(oi) negotiate materially modify or enter into any license of amend, renew, or terminate, or waive any material rights under, any Business Intellectual Property RightMaterial Contract, whether as licensor Permit or as licenseematerial insurance policy, other than in the ordinary course of the Business business consistent with past practice and (ii) other than in all the ordinary course of business consistent with past practice, enter into any Contract that would have been a Business Material Contract had it been entered into prior to the date of this Agreement (excluding the Transaction Documents);
(r) cancel, compromise or settle any Action Related to the Businesses, except (i) in the ordinary course of business or (ii) where the amount paid in settlement or compromise is less than $5,000,000;
(s) with respect to the Transferred Entities: (i) make, change or revoke any material respectsTax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material Tax accounting method, (iv) settle or compromise any claim, notice, audit or assessment in respect of material Taxes, (v) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to a Transferred Entity, (vi) fail to pay any Taxes when it becomes due and payable except to the extent disputed in good faith in accordance with the procedures of applicable Law, or fail (vii) amend any material tax return;
(t) with respect to make the Transferred Entities, amend, restate, modify, supplement, waive, create, incur, guarantee or assume any filingIndebtedness for borrowed money, pay any feeother than Indebtedness of less than $2,000,000 in the aggregate and intercompany Indebtedness;
(i) materially amend or modify, or take terminate, any other action necessary to maintain the ownershipTransferred Real Property Lease, validity and enforceability of or enter into any material Business Patents new lease, sublease, license or Business Trademarks owned by Seller other agreement that would constitute a Material Transferred Real Property Lease, or (ii) renew any Transferred Real Property Lease other than in the ordinary course of its Subsidiariesbusiness consistent with past practice; or
(pv) agree or commit to do do, or enter into any binding Contract with respect to, any of the foregoing actions. From the Principal Closing Date through the applicable Deferred Closing, the Parties shall establish a mutually agreeable arrangement under which Buyer (or one or more of its Affiliates) would obtain the economic benefits, assume the obligations (other than performance obligations) and bear the economic burdens, associated with operating such Deferred Business prior to the applicable Deferred Closing Date (and (i) Buyer shall indemnify and hold harmless Sapphire and its Affiliates in respect of any such economic burdens, including any Liabilities from and after the Principal Closing arising out of the operations of such Deferred Business and (ii) Sapphire shall pay over to Buyer the net amount of such economic benefits accruing from and after the Principal Closing arising out of the operations of such Deferred Business); provided that, Seller and its Affiliates shall have no obligation to make any investment in, or to make any loan or other capital contribution to, such Deferred Business unless the funds therefor have been advanced by wire transfer to the applicable Seller or Affiliate by Buyer or its Affiliates; provided, further, that, Sellers shall until the applicable Deferred Closing operate each such Deferred Business on a “locked box” basis and not permit such Deferred Business to (w) dividend, distribute or otherwise pay any Cash, including through share repurchases or capital reduction arrangements in foreign jurisdictions, outside of such Deferred Business, (x) incur any Indebtedness for borrowed money or (y) assume or guarantee any obligation of any third party (including Sapphire or its Affiliates), or otherwise enter into any transaction or arrangement with Sapphire or its Affiliates; provided, further, that, notwithstanding the foregoing. For , Sellers shall pay and be responsible for any separation or segregation costs associated with the applicable Deferred Closing (it being understood and agreed that, for the avoidance of doubtdoubt and except as otherwise provided in the Transition Services Agreement, Seller any integration costs incurred by Buyer or any of its Affiliates in respect of such Deferred Business following the applicable Deferred Closing shall be the sole responsibility of Buyer and its Affiliates). Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that prior to the Relevant Closing, nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operation of Sellers or the Transferred Entities, and prior to the Relevant Closing, Sellers and the Transferred Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations. Notwithstanding anything herein to the contrary, Sellers shall, from the date of this Agreement until the Business Day prior to the Principal Closing (or, in respect of any Cash generated by the Retained Businesses, until the Business Day prior to the Relevant Closing), be permitted to (i) cause each Purchased Subsidiary Transferred Entity to dividend, distribute or otherwise pay to Seller Sellers or any of its their Affiliates any Cash, including through share repurchases or all of the cash capital reduction arrangements in foreign jurisdictions and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary Transferred Entity to remove, and pay to Seller Sellers or any of its their Affiliates any cash and cash equivalents Cash held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessaccount.
Appears in 2 contracts
Samples: Security and Asset Purchase Agreement (Arthur J. Gallagher & Co.), Security and Asset Purchase Agreement (Willis Towers Watson PLC)
Conduct of the Business. From and after the date hereof until Effective Date and though immediately prior to the Closing DateClosing, or the earlier termination of this Agreement in accordance with Article 9, except (i) as set forth in Schedule 5.01on Section 6.1 of the Disclosure Schedule, (ii) as expressly otherwise contemplated by applicable Law this Agreement, (iii) as Buyer or by the Transaction Documents, with respect Parent may otherwise consent to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent in writing (which shall not to be unreasonably withheld, conditioned ) or delayed)(iv) as required by applicable Legal Requirements, Seller shall conduct will, and will cause each Acquired Subsidiary to (a) operate the Business in the ordinary course consistent with past practice Ordinary Course of Business and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to goodwill associated with the Business in good repair and operation condition relationships with the Employees, customers, suppliers, distributors and others with whom the Business has a business relationship and (subject to normal wear). Without limiting b) not, without the generality consent of Parent, take any actions (i) that if taken between the date of the foregoing Latest Balance Sheet and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as on Section 4.5 of the date Disclosure Schedule (ignoring the phrase “management level” in Section 4.5(k) for purposes of this AgreementSection 6.1); (ii) that would cause a Material Contract to be accelerated, in each case other than terminated, modified, or cancelled by Seller or any such Contract entered into in Acquired Subsidiary, or that would cause the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter entry into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer Material Contract by Seller or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Acquired Subsidiary (other than for Pre-Closing Taxes);
(kany purchase orders or sales or services agreements on the Business’s standard forms) make any material change in any method that is outside the Ordinary Course of accounting Business or accounting practice of that involves the payment or receipt by Seller or the Acquired Subsidiaries of more than $50,000; (iii) that would cause any Acquired Subsidiary to issue or otherwise allow to become outstanding or redeem or otherwise acquire any equity interest of its Subsidiaries with respect such Acquired Subsidiary or right to the Business (including the Purchased Subsidiaries), except for any such change required by reason equity interest; (iv) other than the current intercompany loans between Seller and the Retained Subsidiaries and the Acquired Subsidiaries, that would cause any Acquired Subsidiary to incur any indebtedness for borrowed money or to guaranty any obligations of a concurrent change in GAAP;
any Person; or (lv) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any that would be an amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license organizational documents of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Acquired Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Qumu Corp), Asset Purchase Agreement
Conduct of the Business. From During the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, period from the date hereof until the Closing DateClosing, Seller shall, except as otherwise contemplated by this Agreement or as set forth in on Schedule 5.014.1, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions Affiliates to, or investments in, any other Person with respect to operate the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except Businesses only in the ordinary course of business consistent with past practices in all material respects and shall, and shall cause its Affiliates to, use its or if such action will have no material effect on their reasonable efforts to preserve intact the Tax Liability Acquired Assets and the Businesses. Without limiting the generality of the Purchased Subsidiary foregoing, and except as otherwise contemplated by this Agreement, from the date of this Agreement until Closing Date, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld), Seller: (a) shall not, and shall cause its Affiliates not to, mortgage, pledge or subject to any Lien (other than for Pre-Closing Taxes);
Permitted Liens) any Acquired Asset, (kb) make shall, and shall cause its Affiliates to, use its and their reasonable efforts to maintain satisfactory relationships with and preserve the goodwill of suppliers and customers in connection with the conduct of the Businesses, (c) shall not, and shall cause its Affiliates not to, transfer or grant any material change rights or options in any method of accounting or accounting practice of Seller or to any of the Acquired Assets except for the transfer of inventory in the ordinary course of business, (d) shall not, and shall cause its Subsidiaries Affiliates not to, transfer to any third party any rights under any licenses, sublicenses or other agreements with respect to any Intellectual Property, (e) shall, and shall cause its Affiliates to, conduct its marketing and promotional activities with respect to the Products in the ordinary course of each Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into consistent with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)past practices, (iif) other than as provided under the Severance Planshall not, grant and shall cause its Affiliates not to, institute any new severance methods of purchase, sale or termination pay to operation nor institute any Business Employee changes in the product pricing or (iii) increase the compensation payable to any Business Employee, in each case promotional allowances other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the each Business consistent with past practice in all material respectspractices, or fail to (g) shall not, and shall cause its Affiliates not to, make any filingmaterial changes in selling, pay pricing or advertising practices inconsistent with past practices and (h) shall not launch any feeProduct packaging changes or Product line extensions, or take any other action necessary to maintain including the ownership, validity and enforceability Estrace(R) Cream "Unit of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
Use" line extension. Without limiting the foregoing in clause (p) agree or commit to do any of the foregoing. For the avoidance of doubtg), Seller shall be permitted to (i) not, and shall cause each Purchased Subsidiary to dividendits Affiliates not to, distribute engage in any special promotions of any Product or otherwise pay to Seller or establish any tie-ins of any Product with any of Seller's or its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the Affiliates' other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessproducts.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Warner Chilcott Inc), Asset Purchase Agreement (Warner Chilcott PLC)
Conduct of the Business. From Each of the Company and Parent covenants and agrees that:
(a) Except as expressly contemplated by this Agreement or the Additional Agreements, as required by applicable Law, as set forth on Schedule 6.1(a), as necessary to consummate the Restructuring, or as consented to in writing (which shall not be unreasonably conditioned, withheld or delayed) by 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, except as set forth Date and the termination of this Agreement in Schedule 5.01, as expressly contemplated by applicable Law or by accordance with its terms (the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed“Interim Period”), Seller each party shall (i) conduct the Business its business only in the ordinary course (including the payment of accounts payable and the collection of accounts receivable), consistent with past practice practices, (ii) duly and shall 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 the present its business organization, assets, Permits, properties, and material business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition other third parties.
(subject to normal wear). b) Without limiting the generality of the foregoing foregoing, and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by this Agreement or the Transaction Documents (including Additional Agreements, as required by applicable Law, as necessary to consummate the Restructuring) , or with Buyeras set forth on Schedule 6.1(b), during the Interim Period, without the other party’s prior written consent (which shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to neither the BusinessCompany nor Parent shall, Seller shall not and shall cause or permit its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts 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, or 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 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) enter into any contract, agreement, lease, license or commitment that would constitute a Material Contract, other than any Contracts with customers entered into in the ordinary course consistent with past practice of business;
(iv) make any capital expenditures in all material respectsexcess of $200,000 (individually or in the aggregate);
(bv) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinits material assets, except (i) pursuant to existing Contracts, contracts or (ii) otherwise in the ordinary course consistent with past practice;
(c) create commitments disclosed herein or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectsbusiness;
(fvi) solely in the case of the Company, sell, exclusively license, abandon, permit to lapse, assign, transfer, or otherwise dispose of any Company 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, promise to pay or set aside any dividends, distributions or other amounts with respect to its capital stock or other equity securities other than, in each case, the payment of dividends consistent with the Company’s past practice; (B) pay, declare or promise to pay any other amount to any stockholder or other equity holder in its capacity as such other than, in each case, the payment of dividends consistent with the Company’s past practice; 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 other than loans to the Company’s employees in an amount not to exceed $10,000 in the aggregate; (B) incur any new 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 LawU.S. GAAP, amend or modify in make any material respect change in its accounting principles, methods or terminate any Contract listed in Schedule 3.09, practices or otherwise waive or release any material rights, claims or benefits write down the value of the Business thereunderits assets;
(gxvii) 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 any redemption by Parent of shares of Parent Common Stock held by its public stockholders as contemplated by Section 6.5(f);
(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 Contract (including a hedging Tax allocation, Tax sharing, Tax indemnity or swap other closing agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
any Taxes; or (jE) with respect to any Purchased Subsidiary, make surrender or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender 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, benefits, and dividends consistent with the Company’s past practice;
(xxi) solely in each the case of the Company, other than as required by a Plan (A) increase or change the compensation or benefits of any employee or service provider except as consistent with the Company’s past practice, (B) accelerate the vesting or payment of any compensation or benefits of any employee or service provider, (C) 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, (D) 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 in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (and other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect loans to the Business (including Company’s employees in an amount not to exceed $10,000 in the Purchased Subsidiaries)aggregate, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iiiE) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend terminate any Bargaining Agreement collective bargaining agreement or recognize any other agreement with a labor union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesorganization;
(nxxii) adopt, approve, consent fail to or propose duly observe and conform to any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiariesapplicable Laws and Orders;
(oxxiii) negotiate or enter into any license of any material Business Intellectual Property Rightauthorize, whether as licensor or as licenseerecommend, other than in the ordinary course of the Business consistent with past practice in all material respectspropose, or fail announce an intention to make any filing, pay any feeadopt, or take any other action necessary to maintain the ownershipotherwise effect, validity and enforceability a plan of any material Business Patents complete or Business Trademarks owned by Seller partial liquidation, dissolution, restructuring, recapitalization, reorganization, or similar transaction involving it or any of its SubsidiariesSubsidiary; or
(pxxiv) enter into any agreement or 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. For , the avoidance of doubt, Seller 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 (iincluding the Centers for Disease Control and Prevention and the World Health Organization) cause in each Purchased Subsidiary case in connection with, related to dividendor in response to COVID-19, distribute or otherwise pay to Seller including the CARES Act or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) removechanges thereto, or cause any Subsidiary to removefuture epidemics, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere withpandemics, or otherwise adversely affect, the ordinary course conduct of the Businesssimilar health emergencies.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing Date, except as set forth in Schedule 5.01otherwise provided for by this Agreement, as expressly contemplated by applicable Law or by each of the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and Companies shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to carry on the Business in good repair the ordinary course of business and operation condition substantially in the same manner as currently conducted.
(subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from b) From the date hereof until the Closing Date, except as set forth otherwise provided for by this Agreement, or consented to in Schedule 5.01, as expressly contemplated writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed)) neither of the Companies shall take any action which, if taken after January 1, 2013 and prior to the date hereof, would have been required to be disclosed on Schedule 4.2(h) (other than with respect to the Business, Seller shall not and shall cause its Subsidiaries subsection (including any Purchased Subsidiaryxv) not to:thereof).
(ac) acquire a material amount From the date hereof until the Closing Date, neither of assets from any other Person except the Companies shall fail to (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
; (cii) create or otherwise incur any Lien on any Purchased Asset or any asset timely pay all material Taxes due and payable; and (iii) promptly notify Buyer of any Purchased Subsidiarymaterial income, franchise or similar (or other than Permitted Liens and material) Tax claim, investigation or audit pending against or with respect to either of the Purchased SubsidiariesCompanies in respect of any material Tax matters, Liens with respect including material Tax Liabilities and material Tax refund claims. From the date hereof until the Closing Date, neither of the Companies shall cause either of the Companies to the Non-Business Assets;be treated as an association taxable as a corporation for Tax purposes.
(d) incur From the date hereof until the Closing Date, so long as the Companies and the Sellers have satisfied the condition set forth in Section 8.1(c), the Companies shall have the right to distribute or dividend any capital expenditurescash to either of the Sellers, except for those contemplated by the capital expenditure budget made available distributions or dividends that would reasonably be expected to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 result in the aggregate;Net Working Capital of either of the Companies to be less than $0.
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)From the date hereof until the Closing Date, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits neither of the Business thereunder;
Companies shall (g) enter into any Contract (including a hedging without the consent of Parent or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)Affiliates, from engaging which consent may be withheld or competing delayed in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (itheir sole discretion) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment Contract related to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licenseeticketing, other than in ticketing arrangements for 2014 events, which shall be at the ordinary course sole discretion of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain Sellers and the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.Companies;
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SFX Entertainment, INC)
Conduct of the Business. (a) Except as provided on the attached Business Conduct Schedule or as contemplated by the Related Transactions or otherwise under this Agreement, from the date hereof until the Closing Date, the Partnership shall and shall cause each of its Subsidiaries to:
(i) use its commercially reasonable efforts to carry on its business in the ordinary course of business and in a substantially similar manner as previously conducted (including using commercially reasonable efforts to preserve its relationships with material suppliers and material customers and other material Persons having business dealings with it), unless Buyer shall have otherwise consented in writing (which consent shall not be unreasonably withheld or delayed); provided that, the foregoing notwithstanding, the Partnership and its Subsidiaries may use all available cash to repay any Indebtedness at or prior to the Closing;
(ii) maintain insurance upon all of the assets and properties of the Partnership and its Subsidiaries in such amounts and of such kinds comparable in all material respects to that in effect on the date of this Agreement; and
(iii) (A) maintain the books, accounts and records of the Partnership and its Subsidiaries in the ordinary course of business, and (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts outside of the ordinary course of business consistent with past practice.
(b) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Related Transactions or otherwise under this Agreement, the Business Conduct Schedule, required by applicable Law law or consented to in writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned withheld or delayed), Seller the Partnership shall not, and shall not permit any Subsidiary to:
(i) issue, sell, repurchase or redeem any interests or shares of its or any Subsidiary’s equity interests;
(ii) issue, sell, repurchase or redeem any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any interests or shares of its or any Subsidiary’s equity interests;
(iii) effect any recapitalization, reclassification, stock dividend, cash dividend, stock split or like change in its capitalization (other than any tax distributions made in respect of any period prior to the Closing and in accordance with the terms of the LLC Agreement and the Partnership Agreement and distributions to other Subsidiaries);
(iv) amend its or any Subsidiary’s certificate of limited partnership, partnership agreement, certificate of incorporation or bylaws (or equivalent organizational documents) in a manner adverse to Buyer or inconsistent with the terms of this Agreement;
(v) enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Partnership or its Subsidiaries, or the ability of Buyer, to compete with or conduct any business or line of business in any area or solicit the Business employment of any persons;
(vi) terminate, amend, restate, supplement or waive any rights under any (A) material contract, lease or license, other than in the ordinary course consistent with past practice and shall use its commercially reasonable efforts of business or (B) Permit;
(vii) become legally committed to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until any new capital expenditures requiring expenditures following the Closing DateDate in excess of $250,000 for any individual commitment and $1,000,000 in the aggregate, except for any expenditures pursuant to projects for which work has already been commenced or is otherwise contemplated in the capital expenditure budget, as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:Business Conduct Schedule;
(aviii) acquire a material amount make any loan or advance any funds to any Person out of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise the ordinary course of business and, if in the ordinary course consistent with past practice (of business, the principal amount of loan advances owed by such Person shall not be in all material respects)excess of $100,000;
(bix) except as required by law, grant any material salary or wage increases, or modify or amend any Plan in any manner that increases the amount of the liability attributable to the Partnership or any Subsidiary in respect of such Plan;
(x) enter into or amend any written employment agreement or severance agreement or other similar arrangement with any employee, including, but not limited to, any such agreements set forth on the Employee Benefits Schedule, unless required by applicable law and except for offer letters to new hires that do not commit the Partnership or any Subsidiaries to continue the employment of the employee for any period of time;
(xi) change its methods of accounting under GAAP (including not causing any material write-off or reduction in the carrying value of any assets), except as required by GAAP, or make or change any material accounting method or material election in respect of Taxes;
(xii) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others, other than ordinary course borrowing under the revolving credit facility under the Credit and Guaranty Agreement;
(xiii) sell, lease, license or otherwise dispose of or encumber any Purchased Assets of its properties or assets of which are material, individually or in the Purchased Subsidiaries aggregate, to the Partnership’s business;
(xiv) settle or compromise any pending or threatened legal proceeding (other than Non-Business Assets), any proceeding or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and claim with respect to the Purchased Subsidiaries, Liens with respect to matter referenced item 9 on the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Litigation Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place hereto as of the date hereof) or any claim or claims for an amount in excess of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;$250,000; or
(hxv) authorize or enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any furtherance of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Merger Agreement (Yell Finance Bv)
Conduct of the Business. From the date hereof Original Date until the earlier of the Closing DateDate and the date this Agreement is terminated in accordance with its terms, except as set forth in Schedule 5.01Section 5.02 of the Buyer Disclosure Schedule, as expressly contemplated required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetother provision of this Agreement, or otherwise with BuyerSeller’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Buyer shall, and shall cause its Subsidiaries to, conduct the Business its business in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)practice. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof Original Date until the earlier of the Closing Date, except as set forth Date and the date this Agreement is terminated in Schedule 5.01accordance with its terms, as expressly contemplated required by the Transaction Documents (including the Restructuring) applicable Law or any other provision of this Agreement, or otherwise with BuyerSeller’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Buyer shall not and shall cause its Subsidiaries (including not to amend or modify Buyer’s Organizational Documents except for amendments which are not reasonably expected to result in any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except adverse impact to Seller. Further, in the event (i) pursuant to existing Contracts or (ii) otherwise of changes in the ordinary course consistent with past practice (outstanding Buyer Ordinary Shares by reason of share dividends, split-ups, recapitalizations, reclassifications or combinations after the Original Date and prior to the Closing, the number of Buyer Ordinary Shares comprising the Share Consideration shall be correspondingly adjusted to give Seller the total number, class and kind of shares of Buyer as Seller would have owned had the Closing occurred immediately prior to the event in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of question and had Seller continued to hold the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing ContractsShare Consideration until after the event requiring adjustment, or (ii) otherwise in Buyer pays an extraordinary cash dividend or distribution after the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens Original Date and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date Closing, the number of this Agreement Buyer Ordinary Shares comprising the Share Consideration shall equitably adjusted to account for such extraordinary dividend or a pro rata portion of such dividend or distribution (as if the Share Consideration were outstanding at the time of the dividend or distribution) will be reserved for the benefit of Seller and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in paid with the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify Share Consideration . Without in any material respect way limiting any Party’s rights or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of obligations under this Agreement, the Parties understand and agree that prior to Closing nothing contained in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by shall give Seller or any of its Subsidiaries; or
(p) agree , directly or commit indirectly, the right to do any control or direct the operation of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash Buyer’s business and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to removeoperations, and pay prior to Seller or any Closing, Buyer and its Subsidiaries shall exercise, consistent with the terms and conditions of its Affiliates any cash this Agreement, complete control and cash equivalents held in any bank account that is a Purchased Asset; supervision over their respective businesses and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessoperations.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Conduct of the Business. From (a) Except (i) as required to comply with the date hereof until the Closing Dateterms of this Agreement, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or (ii) for actions approved by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent Buyer in writing (which approval shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct (iii) as required by applicable Law or any Governmental Order, (iv) as required in connection with the Business Restructuring, (v) to the extent required to meet obligations set forth in the [REDACTED: Name of party – due to confidentiality] Agreements, (vi) 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, or (vii) as set forth on Section 7.1 of the Seller Disclosure Schedules, during the period from the date of this Agreement to the Closing Date, the Seller and Energy shall cause each Company to operate and maintain its business according to its ordinary and usual course of business consistent with past practice and shall use its commercially Good Utility Practice, including using reasonable best efforts to preserve intact incur Scheduled Capital Expenditures substantially as budgeted and scheduled, unless the present business organizations Buyer and goodwill of the BusinessSeller shall agree otherwise in writing. Notwithstanding the foregoing, preserve on the present relationships of the last Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until Day preceding the Closing Date, except as set forth in Schedule 5.01the Seller and Energy shall cause the Companies to distribute to the Seller or Energy, as expressly contemplated applicable, as a cash dividend or other distribution, substantially all of the Companies' cash on hand as of such date.
(b) Without limiting the enforceability of Section 7.1(a), except (i) as required to comply with the terms of this Agreement, (ii) for actions approved by the Transaction Documents Buyer in writing (including the Restructuring) or with Buyer’s prior written consent (which approval shall not to be unreasonably withheld, conditioned or delayed), (iii) as required by applicable Law or any Governmental Order, (iv) as required in connection with respect the Restructuring, (v) to the Businessextent required to meet the obligations set forth in the [REDACTED: Name of party – due to confidentiality] Agreements, (vi) 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, or (vii) as set forth on Section 7.1 of the Seller shall not Disclosure Schedules during the period from the date of this Agreement to the Closing Date, the Seller and Energy shall cause its Subsidiaries (including any Purchased Subsidiary) each Company not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts (A) amend its organizational documents; (B) split, combine or reclassify its outstanding Shares or the Membership Interest, as applicable; (C) declare, set aside or pay any distribution payable in stock or property in respect of any Shares or the Membership Interest, as applicable; or (D) repurchase, redeem or otherwise acquire any of its Shares or the Membership Interest, as applicable, or any securities convertible into or exchangeable or exercisable for any of such Shares or the Membership Interest, as applicable;
(ii) otherwise issue, sell, or dispose of any Shares or the Membership Interest, as applicable, or any other equity securities in either Company, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any Shares, the ordinary course consistent with past practice (Membership Interest or other equity securities in all material respects)either Company;
(biii) incur any Indebtedness, except for Indebtedness under the Money Pool Agreement that will be repaid or eliminated prior to the Closing;
(iv) except pursuant to the Money Pool Agreement or as permitted under Section 7.1(b)(x), make any acquisition of, or investment in, assets or stock of any other Person, other than in an amount not to exceed $5,000,000 in the aggregate;
(v) sell, lease, license license, or grant any Encumbrance or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (its assets, other than Non-Business Assets)(A) any assets as are obsolete, or in either case, any interests therein, except (iB) pursuant to existing Contracts, Company Agreements that are in effect on the date hereof or (iiC) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and except with respect to the Purchased Subsidiariesgranting an Encumbrance, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures in an amount not to exceed $100,000 individually or $1,000,000 in the aggregate;
(evi) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)terminate, establish, adopt, enter into, make any loansnew grants or awards of unit-based compensation or other benefits under, advances amend or capital contributions tootherwise materially modify any Benefit Plan or increase the salary, wage, bonus or investments in, other compensation of any other Person with respect to the Business, other than Company Employee except (A) for grants or awards under any existing Benefit Plan in the ordinary course of business such amounts and on such terms as are consistent with past practice in all material respectsor (B) for actions necessary to satisfy existing contractual obligations under any Benefit Plan existing as of the date hereof or to comply with applicable Law;
(fvii) except as required by Law, amend or modify hire non-management employees (other than to maintain an aggregate headcount of no more than six (6) more employees than are included in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place headcount as of the date of this Agreement), hire management employees, terminate any employee (except for cause), or transfer the employment of any Company Employee (other than transfers between the Companies or promotions within a Company);
(viii) enter into any new, or amend any existing, collective bargaining agreement which pertains to the employment of any Continuing Union Employee, except to the extent that the failure to do so would constitute a violation of Law;
(ix) change any material financial or Tax accounting method, policies, practices or election, except as required by GAAP or applicable Law;
(x) make any maintenance expenditures or capital expenditures, other than, in each case consistent with Good Utility Practices, (A) the Scheduled Capital Expenditures, (B) any other than any such Contract entered into maintenance expenditure or capital expenditure which expenditures shall not exceed $2,000,000 in the ordinary course of business consistent aggregate with past practice respect to all Applicable Facilities, and not on an individual Applicable Facility basis, or (C) any unscheduled maintenance expenditures and capital expenditures that are required in all material respects and on customary termsorder to comply with an applicable Law or regulatory requirement;
(hxi) amend in any material respect any of the Company Agreements or enter into any new contract, agreement, personal property lease, commitment, understanding or instrument that would have been required to be disclosed on Section 5.11 of the Seller Disclosure Schedules if such contract, agreement, personal property lease, commitment, understanding or instrument had been in effect on the date hereof;
(xii) enter into or materially amend any material real or personal property tax agreement, treaty or settlement;
(xiii) adopt or amend any severance or termination pay plan or arrangement for any Company Employee;
(xiv) make any material filings with any Governmental Authority or submit any material documents or material information to a Governmental Authority other than filings required by applicable Law or in connection with seeking to obtain any Required Approval in accordance with Section 7.6;
(xv) initiate, commence or settle any Claim related to the Business or the Companies, other than with respect to any Claim that constitutes an Excluded Liability; or
(xvi) enter into any agreement contract, agreement, commitment or arrangement that limits arrangement, whether written or otherwise restricts in any material respect the Businessoral, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except the transactions set forth in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) foregoing paragraphs (i) enter into any Bargaining Agreementthrough (xv).
(c) The Seller, employmentEnergy and the Buyer acknowledge and agree that: (i) nothing contained in this Agreement shall give the Buyer, deferred compensationdirectly or indirectly, severancethe right to control or direct the Seller's, retirement Energy's or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment the Companies' operations prior to any such existing agreement)the Closing Date, (ii) other than as provided under prior to the Severance PlanClosing Date, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business EmployeeSeller and Energy shall exercise, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course terms and conditions of business that would not materially increase this Agreement, complete control and supervision over its and the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International PlanCompanies' operations, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between notwithstanding anything to the contrary set forth in this Agreement, no consent of the Buyer shall be required with respect to any Purchased Subsidiary, on the one hand, and Seller matter set forth in this Section 7.1 or any Retained Subsidiary, on the other hand, and make capital increases elsewhere in connection therewith, except in each case, this Agreement to the extent the requirement of such transfer consent would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessviolate any applicable Law.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (Transcanada Corp)
Conduct of the Business. From (a) Except as otherwise contemplated by this Agreement or consented to in writing by Buyer, from the date hereof until to the Closing DateClosing, except as set forth in Schedule 5.01Sellers shall, as expressly taking into account any matters that may arise that are attributable to the pendency of the transactions contemplated by applicable Law or by the Transaction Documentsthis Agreement, with respect (i) cause NNGC to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in all material respects only in the ordinary course, consistent with past practices and in material compliance with Applicable Laws and (ii) use their respective reasonable best efforts to preserve the business organization of NNGC intact, keep available the services of employees of NNGC and preserve the existing relations with customers, suppliers and other Persons with which NNGC has significant business dealings, but Sellers and NNGC shall not be required to make any payments or enter into or amend any contractual arrangements, agreements or understandings to satisfy the foregoing obligation unless such payment or other action is required by Applicable Law, by contractual obligation with such third parties or to operate in the ordinary course consistent with past practice and shall practices. Sellers agree to use its commercially reasonable their best efforts to preserve intact keep the present business organizations NNGC Insurance Policies in full force and goodwill of effect through the Business, preserve the present relationships of the Business with customers Closing Date.
(b) From and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from after the date hereof until to the Closing Date, except as otherwise contemplated by this Agreement or as set forth in Schedule 5.01Section 5.1(b) of the Disclosure Letter, as expressly contemplated by Sellers shall not permit NNGC, without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer (which consent shall not to be unreasonably withheld, conditioned withheld or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant (A) increase the compensation payable to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sellto become payable to or grant any bonuses to any former or present director, leaseofficer, license employee or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinconsultant, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice practices for persons who are not former or present officers or directors, (B) enter into or amend any employment, severance, termination or similar agreement or arrangement with any former or present director, officer, employee or consultant, (C) establish, adopt, enter into or amend or modify any Benefit Plan except as may be required by Applicable Law, (D) grant any severance or termination pay, (E) amend or take any other actions to increase the amount of, or accelerate the payment or vesting of, any benefit or amount under any Benefit Plan, policy or arrangement (including the acceleration of vesting, waiving of performance criteria or the adjustment of awards or providing for compensation or benefits to any former or present director, officer, employee or consultant), or (F) contribute, transfer or otherwise provide any cash, securities or other property to any grantee, trust, escrow or other arrangement that has the effect of providing or setting aside assets for benefits payable pursuant to any termination, severance or other change in all material respectscontrol agreement; except
(1) pursuant to any contract, agreement or other legal obligation of NNGC existing at the date of this Agreement, (2) in the case of severance or termination payments, pursuant to the severance policies adopted by NNGC existing at the date of this Agreement, and (3) as required by Applicable Law;
(fii) except as required by Lawdeclare, amend set aside or modify in pay any material respect or terminate any Contract listed in Schedule 3.09dividend on, or otherwise waive or release make any material rightsother distribu- tion in respect of, claims or benefits outstanding Equity Securities of the Business thereunderNNGC;
(giii) enter into (A) directly or indirectly redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Contract outstanding Equity Securities of NNGC, or (B) effect any reorganization or recapitalization or split, combine or reclassify any of the Equity Securities of NNGC or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, such Equity Securities;
(iv) (A) offer, issue, deliver, grant or sell, or authorize or propose the offering, issuance, delivery, grant or sale (including the grant of any Encumbrances or limitations on voting rights), of any Equity Securities of NNGC or (B) amend or otherwise modify the terms of any outstanding Equity Securities the effect of which will be to make such terms more favorable to the holders thereof;
(A) adopt a hedging plan of complete or swap agreement partial dissolution or similar arrangementliquidation, (B) that would be required acquire or agree to be disclosed acquire, by merging or consolidating with, purchasing Equity Securities in, or purchasing all or a portion of the assets of, or in Schedule 3.09 if any other manner, any business or any Person or other- wise acquire or agree to acquire any assets or property of any other Person (excluding capital expenditures), in each case for consideration in excess of $100,000 or for consideration for all such acquisitions in excess of $500,000 or (C) make any loans, advances or capital contribu- tions to, or investments in any Person in excess of $100,000 except for (1) loans, advances and capital contributions, or investments pursuant to and in accordance with the terms of any Material Contract were or other legal obligation, in place each case existing as of the date of this AgreementAgree- ment, (2) contributions in aid of construction made in the ordinary course, consistent with past practices or (3) customary loans and advances to employees in amounts not material to NNGC;
(vi) make or commit to make any capital expenditures other than (A) those set forth in Section 5.1(b) of the Disclosure Letter, (B) pursuant to contracts, forecasts or plans in existence on the date hereof, (C) reasonable expenditures made by NNGC in connection with any emergency or force majeure events affecting NNGC and (D) other capital expenditures not in excess of $500,000, in each case the aggregate;
(vii) sell, transfer, lease, exchange or otherwise dispose of, whether by merging, consolidating or in any other than manner, or grant any such Contract entered into Encumbrance with respect to, any of the material properties or assets of NNGC, except for (A) sales of natural gas and condensate in the ordinary course of business consistent with past practice practices and (B) sales or other dispositions of property or assets that in all the aggregate are not material respects to NNGC; provided, that the sale or other disposition of the data center located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 shall be deemed material and on customary termsshall require the prior written consent of Buyer;
(hviii) enter into adopt or propose any agreement amendments to its certificate of incorporation or arrangement that limits or otherwise restricts bylaws;
(ix) (A) change in any material respect the Business, Buyer or any of their respective Affiliates its methods or principles of accounting in effect at June 30, 2002, except to the extent required to comply with GAAP, (including the Purchased Subsidiaries after the Closing DateB) make or rescind any material election relating to Taxes (other than any election that must be made periodically and is made consistent with past practice), (C) settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes or (D) change any of its material methods of reporting income or deductions for United States federal income tax purposes from engaging or competing those employed in any line the preparation of businessthe United States federal income tax returns for the taxable year ended December 31, 2001, except, in any location or with any Personeach case, as may be required by Applicable Law;
(ix) settleincur, create, assume, guarantee or offer otherwise become liable for any obligation for borrowed money, purchase money indebtedness or propose to settleany obligation of any other Person, any material Action involving whether or not evidenced by a note, bond, debenture, guarantee, indemnity or similar instrument, except for (A) refinancings of existing indebtedness, (B) additional indebtedness not exceeding $100,000 in the Business aggregate, and (C) trade payables incurred in the ordinary course of business consistent with past practice; provided that in the case of (A) - (C), no additional non-current liabilities shall be incurred, created, assumed, guaranteed or relating to otherwise become the transactions contemplated by this Agreementliability or obligation of NNGC;
(jxi) pay, discharge, settle or satisfy any claims, liabilities, obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) prior to the same being due in excess of $500,000 in the aggregate, other than (A) in the ordinary course of business consistent with respect past practices, (B) pursuant to mandatory terms of any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit understanding or assessmentarrangement as in effect on the date hereof, or (C) NNGC may continue to pursue, prosecute and resolve any pending FERC proceedings;
(xii) take or cause to be taken any affirmative action that could reasonably be expected to surrender result in any right of the conditions contained in Section 6.1(a) not being satisfied;
(A) renew, modify, amend or terminate any Material Contract to claim which NNGC is a Tax refundparty, or waive, delay the exercise of, release or assign any material rights or claims thereunder in each case except in the ordinary course of business consistent with past practices practice, (B) enter into or amend in all any material respects manner any contract, agreement or if such action will have no material effect on commitment with any former or present director, officer or employee of NNGC or with any Affiliate or associate (as defined under the Tax Liability Exchange Act) of any of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect foregoing Persons except to the Business (including the Purchased Subsidiariesextent permitted under Section 5.1(b)(i), except for any such change required by reason of a concurrent change in GAAP;
and (l) (iC) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement agreements or other similar agreement contracts that if entered into with on or prior to the date hereof would be required to be disclosed in Section 3.13(a) of the Disclosure Letter;
(xiv) enter into any Business Employee agreements, understandings, contracts or Purchased Subsidiary Employee (commitments with, or engage in any transactions or transfers of assets or liabilities to or from, Sellers or any amendment to any such existing agreement)of their Affiliates other than those allowed by NNGC's natural gas tariff on file with FERC, those expressly contemplated by this Agreement or those listed in Section 3.13(b) of the Disclosure Letter;
(iixv) other than as provided under the Severance Planroutine compliance filings, grant make any new severance filings or termination pay submit any documents or information to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent FERC without prior consultation with past practices in all material respects or as required by Law;Buyer; or
(mxvi) other than as required by Law agree in writing or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise otherwise to commit to undertake take any of the foregoing actions set forth in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 5.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midamerican Energy Holdings Co /New/)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded AssetClosing, or termination of this Agreement in accordance with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Article IX hereof, Seller shall conduct will:
(a) operate the Business only in the usual and ordinary course of business consistent with past practice and shall use its commercially reasonable efforts do all acts and things as may be necessary to preserve preserve, protect and maintain intact the present business organizations Assets and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects)going concern;
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of make payments on payables relating to the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant a manner consistent with past practice and collect receivables relating to existing Contracts, or (ii) otherwise the Business in the ordinary course a manner consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset use reasonable efforts to preserve the business relationships of any Purchased Subsidiary, other than Permitted Liens and Seller with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business AssetsBusiness;
(d) incur refrain from entering into any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior contract or renewing any lease relating to the date Business which (i) calls for payments exceeding $50,000 or (ii) does not expire within one year or is not cancelable by Buyer within one year without penalty, without the prior written approval of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregateBuyer;
(e) other than refrain from taking any action which reasonably could be expected to render any representation or warranty of Seller contained herein untrue or incorrect in connection any material respect (except to the extent a representation or warranty is qualified by materiality, in which case Seller will refrain from taking any action which would render such representation or warranty untrue or incorrect) as of the Closing;
(f) comply in all material respects with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect all laws applicable to the Business, including, but not limited to, Environmental Laws;
(g) refrain from making any disposition of any assets relating to the Business other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(h) enter into refrain from making any agreement or arrangement that limits or otherwise restricts commitment for capital expenditures relating to the Business in any material respect excess of $50,000 without the Businessprior written consent of Buyer, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Personwhich consent shall not be unreasonably withheld;
(i) settlerefrain from permitting any of the Assets owned by it to become subject to any Encumbrances, except Permitted Encumbrances or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this AgreementReal Property Encumbrances;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, maintain insurance as currently in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)effect;
(k) make give Buyer a copy of any material change in notice from any method of accounting governmental or accounting practice of Seller regulatory authority or any other person alleging any violation of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)any rule, except for any such change required by reason of a concurrent change in GAAPregulation, law or ruling;
(l) (i) enter into refrain from making any Bargaining Agreementchange in accounting methods, employment, deferred compensation, severance, retirement principles or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment practices relating to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;Business; and
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit refrain from agreeing to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Russell-Stanley Holdings Inc)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, (a) Seller shall (i) conduct its business with respect to any Excluded Liability the Product and the Acquired Assets only in the ordinary course, consistent with past practices and reasonable industry standards, (ii) continue to conduct the Litigation Matter in a diligent manner and (iii) maintain all Regulatory Documentation as current and timely, as required by the FDA or Excluded Assetother Governmental or Regulatory Authority, or with Buyer’s prior written and (b) Seller shall not without the consent of the Buyer (which consent shall not to be unreasonably withheld, conditioned delayed or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:conditioned):
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased the Acquired Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (iA) pursuant to existing Contracts, contracts or commitments and (iiB) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset sale of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than inventory in the ordinary course of business consistent with past practice in all material respectspractices;
(fii) except as required by Law, terminate or amend any agreement set forth on Schedule 5.7(b)(i) or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g5.7(b)(ii) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(has contemplated by Section 7.6(c) or enter into any agreement or arrangement that limits or would, if in effect as of the date hereof, otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose be required to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except be set forth on such Schedule other than purchase orders in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)business;
(kiii) make any material change engage in any method of accounting or accounting practice of Seller or any of its Subsidiaries special promotional activities and/or special discounts with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAPProduct;
(lA) (i) enter into take or agree or commit to take any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business action that would not materially increase the costs amend or terminate make any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence representation and warranty made by Seller under this Agreement on the date hereof or materially increase the benefits provided under inaccurate in any Employee Plan or International Planrespect at, or promise to as of any time prior to, the Closing Date or (B) omit or agree or commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent omit to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of prevent any material Business Patents such representation or Business Trademarks owned by Seller or warranty from being inaccurate in any of its Subsidiariesrespect at any such time; or
(pv) settle or agree to settle any claim, suit, action or other proceeding relating to the Product or the Acquired Assets or file any motions or serve or respond to any discovery requests in the Litigation Matter; or
(vi) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Par Pharmaceutical Companies, Inc.)
Conduct of the Business. From the date hereof until the Closing Date, except (a) Except as set forth in Schedule 5.01on the attached Conduct of Business Schedule, as expressly contemplated by applicable Law or by during the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, period from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not until the Closing or the earlier termination of this Agreement pursuant to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)7.01 hereof, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required otherwise provided for by Lawthis Agreement or consented to in writing by Parent, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into Company shall conduct its operations in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in use commercially reasonable efforts to preserve intact its current business organizations, keep available the service of its current officers and employees through the Closing, preserve through the Closing any material respect relationships with Persons having material business dealings with the BusinessCompany preserve in full force and effect all Company Patents that are issued and unexpired as of the date hereof. Without limiting the generality of the foregoing, Buyer or any except as expressly contemplated by this Agreement and except as set forth on the Conduct of their respective Affiliates (including Business Schedule, during the Purchased Subsidiaries after period from the date of this Agreement until the Closing Date)or the earlier termination of this Agreement pursuant to Section 7.01, from engaging or competing in any line of business, in any location or with any Person;
the Company will (i) settlenot intentionally take any action which, if taken after the date of the Latest Balance Sheet, would have been required to be disclosed on the Developments Schedule pursuant to Section 3.07, (ii) use reasonably diligent efforts to continue to prosecute the Patents and (iii) use commercially reasonable efforts to notify Parent in writing separate from any other disclosures made hereunder of any relevant due dates related to prosecution, filing or offer maintenance of the Patents that will occur within thirty (30) days after the Closing.
(b) During the period from the date of this Agreement until the Closing or propose the earlier termination of this Agreement pursuant to settleSection 7.01 hereof, any material Action involving the Business or relating to the transactions contemplated except as otherwise provided for by this Agreement;
Agreement or consented to in writing by the Company, Parent shall (ji) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except conduct its operations in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to ; and (ii) at all times maintain in a separate bank account of Parent for payment of obligations under this Agreement not less than $160 million in cash. Without limiting the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any generality of the foregoing. For , except as expressly contemplated by this Agreement during the avoidance period from the date of doubtthis Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 7.01, Seller shall be permitted to Parent will not (i) cause each Purchased Subsidiary transfer or grant or suffer to dividend, distribute exist any Lien on such cash or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiarybank account; (ii) removeuse or commit to use such cash for any other matter unrelated to the payment of the Aggregate Merger Consideration and Other Closing Payment Amounts, or cause any Subsidiary to removeincluding (without duplication) the Transaction Expenses, the Xxxx Firm Payoff Amount, the Escrow Amount, the Representative Expense Amount and the Aggregate Merger Consideration, and pay other amounts to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessbe paid by Buying Parties as contemplated by this Agreement.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing DateAcquisition Merger Effective Time, except as set forth in Schedule 5.01, as expressly contemplated or permitted by this Agreement or Additional Agreements or as required by applicable Law or by the Transaction DocumentsLaw, with respect to any Excluded Liability or Excluded Asseteach party shall, or with Buyer’s prior written consent and shall cause its Subsidiaries to, (not to be unreasonably withheld, conditioned or delayed), Seller shall A) conduct the Business their respective business only in the ordinary course consistent with past practice in all material respects, and shall (B) use its commercially reasonable best efforts to preserve intact its assets, keep available the present business organizations services of its current officers and goodwill of the Businesskey employees and maintain in all material respects its current relationships with suppliers, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)other third parties with which it has material business relations. Without limiting the generality of the foregoing and subject to foregoing, except as expressly contemplated or permitted by this Agreement or Additional Agreements or as required by applicable Law, from the date hereof until the Closing DateAcquisition Merger Effective Time, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of the Company and SPAC (provided that (y) such written consent shall not to be unreasonably withheld, conditioned or delayedand (z) such other party shall respond to such request for written consent as soon as practicable and such written consent shall be deemed given if such other party does not respond to such request with three (3) Business Days after the receipt of the request), with respect to each of the Businessparties hereto shall not, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) amend, modify or supplement its Organizational Documents other than pursuant to existing Contracts or this Agreement;
(ii) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any shares or other equity or voting securities of the ordinary course consistent with past practice (in all material respects)Company other than pursuant to this Agreement;
(biii) sellmodify, leaseamend, license enter into, consent to the termination of, or otherwise dispose of waive any Purchased Assets material rights under, any Company Material Contract (or assets of any Contract that would be a Company Material Contract if such Contract has been entered into prior to the Purchased Subsidiaries (other than Non-Business Assetsdate hereof), or except for in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course of business consistent with past practice;
(civ) create make any capital expenditures in excess of US$500,000 (individually or otherwise in the aggregate), except for in ordinary course of business consistent with past practice;
(v) sell, transfer, lease, license, grant or incur any Lien on any Purchased Asset on, or any asset otherwise dispose of any Purchased Subsidiary, other than Permitted Liens and with respect to of the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expendituresCompany Group’s assets or Intellectual Property Rights, except for those contemplated by the capital expenditure budget made available sales of products to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than customers in the ordinary course of business consistent with past practice in all material respectsand not exceeding US$250,000;
(fvi) 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 as required by Lawfor in connection with the Restructuring (defined in Section 9.3) 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, or (B) establish, adopt, amend or modify in terminate the Company Plan or any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits other equity incentive plan except the termination of the Business thereunderCompany Plan and the adoption of the 2024 Equity Incentive Plan of PubCo as contemplated by this Agreement;
(gviii) enter into obtain or incur any Contract (including a hedging loan or swap agreement other Indebtedness in excess of US$10,000,000, or similar arrangement) that would be required to be disclosed assume, guarantee or otherwise become responsible for the obligations of any Person for Indebtedness, except for in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hix) commence, settle, release, waive or compromise any Action of or against any member of the Company Group (A) for an amount in excess of US$1,000,000, (B) that would impose any material restrictions on the business or operations of any member of the Company Group, or (C) that is brought by or on behalf of any current, former or purported holder of any share capital or other securities of any member of the Company Group relating to the Acquisition Merger; adopt or enter into a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any member of the Company Group;
(x) acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or acquisition of shares or assets, any assets, securities or properties, in aggregate, with a value or purchase price in excess of US$10,000,000 in any transaction or related series of transactions;
(xi) fail to maintain in full force and effect material insurance policies covering the Company Group and its properties, assets and businesses in a form and amount consistent with past practices;
(xii) make any change in its accounting principles or methods of accounting, 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;
(xiv) make, change or revoke any material Tax election, amend any Tax Return, enter into any closing agreement or arrangement that limits seek any ruling from any Authority with respect to material Taxes, surrender any right to claim a material refund of Taxes, settle or otherwise restricts in finally resolve any material controversy with respect to Taxes, agree to an extension or waiver of the Businessstatute of limitations with respect to the assessment or determination of material Taxes, Buyer change any method of Tax accounting or Tax accounting period, initiate any voluntary Tax disclosure to any Authority, or incur any material amount of Taxes outside of the ordinary course of business; or
(xv) undertake any legally binding obligation to do any of their respective Affiliates the foregoing.
(including b) From the Purchased Subsidiaries after date hereof through the Closing Date), from engaging or competing SPAC shall remain a “blank check company” as defined under the Securities Act, shall not conduct any business operations other than in any line connection with this Agreement and ordinary course operations to maintain its status as a Nasdaq-listed special purpose acquisition company pending the completion of businessthe transactions contemplated hereby. Without limiting the generality of the foregoing, through the Closing Date, other than in any location or connection with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;, without the Company’s prior written consent (which shall not be unreasonably withheld), SPAC shall not, and shall not cause its Subsidiaries to amend, waive or otherwise change the Investment Management Trust Agreement in any manner adverse to SPAC.
(jc) 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 XIII and (y) the Acquisition Closing, other than in connection with the transactions contemplated hereby, none of the Company Group, SPAC or the Acquisition Entities, 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 Purchased Subsidiarynon-public information, make data or change access to employees to, any Tax electionPerson that has made, change any annual Tax accounting periodor that is considering making, adopt a proposal with respect to an Alternative Transaction or change any method of Tax accounting(iv) approve, recommend or enter into any closing agreementAlternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, settle the term “Alternative Transaction” shall mean any Tax claimof the following transactions involving the Company Group, audit SPAC or assessmentthe Acquisition Entities (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 take (2) any affirmative action to surrender any right to claim sale, lease, exchange, transfer or other disposition of a Tax refundmaterial portion of the assets of such Person (other than the sale, in each case except the lease, transfer or other disposition of assets in the ordinary course of business consistent with past practices in all material respects business) or if such action will have no material effect on the Tax Liability any class or series of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting share capital or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement capital stock or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any equity interests of the foregoing Company Group, SPAC or the Acquisition Entities in the future a single transaction or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents series of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businesstransactions.
Appears in 1 contract
Conduct of the Business. From (a) Except (i) to the date hereof until the Closing Dateextent compelled or required by applicable Law, except (ii) as otherwise expressly permitted or expressly contemplated by this Agreement, (iii) as set forth in Schedule 5.01Section 5.1 of the Seller Disclosure Schedule, (iv) as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed), or (v) with respect to the Retained Assets and Retained Liabilities, during the period from the date hereof to the Closing Date, Seller shall, and shall cause the Companies and their Subsidiaries to, conduct the Transferred Business in the ordinary course consistent with past practice practice, and shall to the extent consistent therewith use its commercially reasonable efforts to (x) (I) maintain the assets and properties of the Transferred Business, including maintenance of the Purchased Owned IP, (II) maintain the Transferred Rx Product Assets including maintenance of the Transferred Owned Rx IP, and (III) preserve intact the present business organizations current relationships and goodwill of the Consumer Care Business with customers, employees, suppliers and others having business dealings with the Consumer Care Business, preserve the present relationships of the Business with customers and suppliers and (y) maintain the propertiesBooks and Records and the Rx Product Regulatory Documentation in the usual, machinery regular and equipment related to the Business ordinary manner, on a basis consistent with past practice and (z) comply in good repair and operation condition all material respects with applicable Law.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject foregoing, except (v) to the extent compelled or required by applicable Law, from the date hereof until the Closing Date(w) as otherwise expressly permitted or expressly contemplated by this Agreement, except (x) as set forth in Schedule 5.01Section 5.1 of the Seller Disclosure Schedule, (y) as expressly contemplated consented to in writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed), or (z) with respect to the BusinessRetained Assets and Retained Liabilities, during the period from the date hereof to the Closing Date, Seller shall not not, and shall cause its the Companies and their Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from , take any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;following actions:
(i) settle, modify or offer amend any of the organizational documents of any Company or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreementof its Subsidiaries;
(jii) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessmentissue, or take authorize the issuance of, any affirmative action to surrender Equity Securities of any right to claim a Tax refund, in each case except in the ordinary course Company or any of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)its Subsidiaries;
(kiii) make (a) split, combine, redeem or reclassify, or purchase or otherwise acquire any material change in Equity Securities of any method of accounting or accounting practice of Seller Company or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conduct of the Business. From (a) Except (i) to the date hereof until the Closing Dateextent compelled or required by applicable Law, except (ii) as otherwise expressly permitted or expressly contemplated by this Agreement, (iii) as set forth in Schedule 5.01Section 5.1 of the Seller Disclosure Schedule, (iv) as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed), or (v) with respect to the Retained Assets and Retained Liabilities, during the period from the date hereof to the Closing Date, Seller shall, and shall cause the Companies and their Subsidiaries to, conduct the Transferred Business in the ordinary course consistent with past practice practice, and shall to the extent consistent therewith use its commercially reasonable efforts to (x) (I) maintain the assets and properties of the Transferred Business, including maintenance of the Purchased Owned IP, (II) maintain the Transferred Rx Product Assets including maintenance of the Transferred Owned Rx IP, and (III) preserve intact the present business organizations current relationships and goodwill of the Consumer Care Business with customers, employees, suppliers and others having business dealings with the Consumer Care Business, preserve the present relationships of the Business with customers and suppliers and (y) maintain the propertiesBooks and Records and the Rx Product Regulatory Documentation in the usual, machinery regular and equipment related to the Business ordinary manner, on a basis consistent with past practice and (z) comply in good repair and operation condition all material respects with applicable Law.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject foregoing, except (v) to the extent compelled or required by applicable Law, from the date hereof until the Closing Date(w) as otherwise expressly permitted or expressly contemplated by this Agreement, except (x) as set forth in Schedule 5.01Section 5.1 of the Seller Disclosure Schedule, (y) as expressly contemplated consented to in writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed), or (z) with respect to the BusinessRetained Assets and Retained Liabilities, during the period from the date hereof to the Closing Date, Seller shall not not, and shall cause its the Companies and their Subsidiaries (including any Purchased Subsidiary) not to, take any of the following actions:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts modify or amend any of the organizational documents of any Company or any of its Subsidiaries;
(ii) issue, or authorize the issuance of, any Equity Securities of any Company or any of its Subsidiaries;
(iii) (a) split, combine, redeem or reclassify, or purchase or otherwise acquire any Equity Securities of any Company or any of its Subsidiaries or (b) issue, grant, deliver, sell, repurchase, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any Equity Securities of the Companies or their Subsidiaries or offer to do the same;
(iv) declare or pay any non-cash dividend or make any non-cash distribution in respect of any Equity Securities of any Company;
(v) (a) incur or suffer to exist any Indebtedness except (A) for working capital borrowings incurred in the ordinary course consistent with past practice of business, or (B) as listed in all material respects);
Section 5.1(b)(v) of the Seller Disclosure Schedule, (b) sell, lease, license change the terms or otherwise dispose extend the maturity of or forgive any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing ContractsIndebtedness, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any material loans, advances or capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the maker of such loan or advance);
(vi) enter into, amend in any material respect or terminate any Contract with respect to the Business, Transferred Consumer Care Business (other than in the ordinary course of business consistent with past practice in all material respectspractice) or any Material Contract or Rx Contract (other than a Business Employment Contract or a Collective Bargaining Agreement);
(fvii) acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof, in each case if the assets of such entity would be included in the Transferred Assets (or would become assets of the Companies or any of their Subsidiaries);
(viii) withdraw any Drug Approval Applications for any Consumer Care Product or any Rx Product Marketing Authorization, or divest, sell, assign, transfer, abandon, cancel, license or otherwise dispose of, or encumber any Transferred Assets or assets of any Company or any of its Subsidiaries, other than (A) the sales of products or services in the ordinary course of business, and (B) Purchased Owned IP (which is addressed in the following sub-Section);
(A) license, sublicense or encumber any Purchased Owned IP, or (B) divest, sell, knowingly abandon, cancel, knowingly waive, modify, intentionally let lapse or otherwise dispose of, or fail to make any registration, renewal, maintenance or other payment that is or becomes due with respect to, any Purchased Owned IP or any patents, patent applications, trademark registrations and applications, Internet domain names and social media accounts listed on Section 5.1(b)(ix) of the Seller Disclosure Schedule (the “Maintained IP”), other than (1) the licensing of Intellectual Property or (2) in connection with the prosecution and maintenance of any Purchased Owned IP or Maintained IP that is not material to the Transferred Business, in each case of (1) and (2), solely in the ordinary course consistent with past practice;
(x) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of any Company or any Subsidiary thereof;
(xi) (A) enter into, adopt or amend any Business Employment Contract, Company Plan (or Plan (or portion thereof)) required to be transferred to Buyer under applicable Law) or enter into any employment or severance agreement with any Business Employee with an annual base salary in excess of $300,000, in each case except as (1) in the ordinary course of business, (2) to the extent required by Law, amend (3) as expressly contemplated by this Agreement, (4) as may be necessary or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) desirable to negotiate and enter into any Contract (including a hedging or swap agreement or similar arrangement) that Collective Bargaining Agreement renewal with respect to a Collective Bargaining Agreement which would be required to be disclosed in Schedule 3.09 if such Contract were in place otherwise expire during the period beginning as of the date of this AgreementAgreement and ending six (6) months following the reasonably expected Closing Date or (5) where any associated liability is retained by Seller or (B) adopt or amend any Company Plan (or Plan (or portion thereof)) providing for severance payments or benefits to Business Employees generally, in each case other than amendments to the extent required by Law or where any such Contract entered into associated liability is retained by Seller;
(xii) make any change in the rate of compensation, commission, bonus, or other direct or indirect remuneration payable, any bonus, incentive, retention, change in control payment or other compensation, retirement, termination, welfare, fringe or severance benefit or vacation pay, to or in respect of any Business Employee, except (A) in the ordinary course of business consistent with past practice business, (B) to the extent required by the express terms existing as of the date hereof in all material respects and on customary termsany Plan disclosed in Section 3.16(a) of the Seller Disclosure Schedule or by any Law, (C) to the extent contemplated by this Agreement or (D) where any associated liability is retained by Seller;
(hxiii) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(ia) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any material Tax election, (b) change any annual Tax accounting period, (c) adopt or change any material method of Tax accounting, enter into any closing agreement, (d) compromise or settle any material Tax claimLiability, audit or assessment, or take any affirmative action to (e) surrender any right to claim a material Tax refund, (f) amend any material Tax Return, or (g) enter into any material closing agreement, except, in each case case, in the ordinary course of business or if such action would reasonably be expected not to have a material effect on the Tax Liability of any Company or any Subsidiary of any Company for any Post-Closing Tax Period;
(xiv) change the accounting policies or procedures of the Consumer Care Business except to the extent required to conform with GAAP;
(xv) change the fiscal year of any Company or any Subsidiary of a Company;
(xvi) except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business and consistent with past practice in all material respects, (a) encourage customers to make payments earlier than would - 52 - otherwise reasonably be expected (based on normal customer purchasing patterns) to be made to the Companies or any of their Subsidiaries, (b) agree to payment terms or conditions with suppliers with respect to the Consumer Care Business that are materially less favorable to the Companies or any of their Subsidiaries, (c) with respect to the products of the Transferred Business, make any change in the selling, distribution, advertising, terms of sale or collection practices, or (d) with respect to products of the Transferred Business, engage in the process of positioning Inventory with distributors, wholesalers, retailers or customers in excess of customers’ requirements or initiate or engage in any program, activity or other action (including any rebate, discount, chargeback or refund policy or practice) that could reasonably be expected to result, directly or indirectly, in sales or profits significantly in excess of normal purchasing patterns of customers of the Companies or any of their Subsidiaries or users of the products set forth on Annex A;
(xvii) fail to build up and maintain Transferred Inventory that is consistent with past practice over the past two (2) years in all material respects and in line with expected demand over the next twelve (12) months;
(xviii) incur, create or assume any Lien on any Transferred Assets or any assets of the Companies or their respective Subsidiaries, other than a Permitted Lien;
(xix) settle any Litigation (i) that would (A) materially affect the conduct of operations of the Transferred Business with respect to any material product or product line or (B) result in the Transferred Business or any of the Companies or their Subsidiaries being subject to any Order or other equitable relief or admission of wrongdoing or (ii) for an amount, individually or in the aggregate, exceeding $1,000,000;
(xx) fail to make budgeted capital investments (excluding information technology) and promotion, direct selling, business support, and research and development expenditures in a manner such that such capital investments and expenditures made from January 1, 2014 through and including the earlier of the Closing Date and December 31, 2014 shall have been made in an aggregate amount at least equal to (i) the amount set forth in Section 5.1(b)(xx) of the Seller Disclosure Schedule, multiplied by (ii) a fraction, the numerator of which is the number of days that shall have elapsed between January 1, 2014 and the earlier of the Closing Date and December 31, 2014, and the denominator of which is 365;
(xxi) permit any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller Company or any Subsidiary thereof to conduct any operations aside from the Consumer Care Business (except as is consistent with past practice) or enter into any new line of its Subsidiariesbusiness outside of the Consumer Care Business; or
(pxxii) agree authorize, agree, resolve or commit consent to do any of the foregoing.
(c) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Transferred Business prior to the Closing Date. For Prior to the avoidance of doubtClosing Date, Seller shall, and shall cause the Companies to, exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of the Transferred Business. Notwithstanding anything to the contrary in this Agreement, no consent of Buyer shall be permitted required with respect to (i) cause each Purchased Subsidiary to dividend, distribute any matter set forth in this
Section 5.1 or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held elsewhere in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, this Agreement to the extent that the requirement of such transfer consent would hinder violate or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessconflict with applicable Law.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Merck & Co. Inc.)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth Seller and its Subsidiaries shall in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall all material respects conduct the Business in the ordinary course consistent Ordinary Course of Business (including routine maintenance and routine preventative maintenance, and in material compliance with past practice Applicable Law) and shall use its their respective commercially reasonable efforts to preserve intact the Purchased Assets, the Business and its relationships with employees, agents, lessors, suppliers, customers and other third parties having business dealings with the Business, and to keep available the services of the present business organizations and goodwill employees of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in disclosed on Section 5.01 of the Seller Disclosure Schedule 5.01, or as expressly contemplated by hereby, neither Seller nor any of its Subsidiaries will, in each case with respect to the Transaction Documents (including Business, without the Restructuring) or with Buyer’s prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:):
(a) acquire a material amount of assets from any other Person (other than acquisitions of any materials, supplies or goods on a spot market basis in the Ordinary Course of Business);
(b) sell, lease, license or otherwise dispose of, or grant any right or Lien, except Permitted Liens, with respect to any Purchased Assets except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose Ordinary Course of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practiceBusiness;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(hi) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the conduct of the Business or that could, after the Closing Date, limit or restrict in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)Affiliates, from engaging or competing in any line of business, in any location or with any PersonPerson or (ii) enter into, amend or modify in any material respect or terminate any Material Contract other than in the Ordinary Course of Business;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(ld) (i) enter into grant or increase any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to (or amend any existing arrangement with) any Business Employee Employee, (ii) increase benefits payable under any existing severance or termination pay policies or employment agreements with any Business Employee, (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any Business Employee, (iv) establish, adopt or amend any Employee Plan or any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any Business Employee, or (v) increase the compensation compensation, bonus or other benefits payable to any Business Employee, in each case referred to in clauses (i) – (v), other than (A) as expressly required by the provisions of any Employee Plan, (B) in the ordinary course Ordinary Course of business consistent with past practices in all material respects or Business, (C) as required by Applicable Law, (D) as required by the terms of any Material Contract set forth on the Seller Disclosure Schedule or any Collective Bargaining Agreement or (E) as set forth on Section 5.01(d) of the Seller Disclosure Schedule;
(me) other than as required by Law enter into any settlement of any pending or in the ordinary course of business that would not materially increase the costs amend threatened litigation or terminate any Employee Plan or International Plan or adopt claim, or enter into any plan amendment of any existing settlement agreement, to the extent such settlement or arrangement that would be considered an Employee Plan amendment will materially interfere with or International Plan if it were impose material additional cost in existence on connection with the date hereof Buyer’s ownership or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any operation of the foregoing in Purchased Assets or any portion of the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as Business from and after the bargaining representative for any Business Employees or Purchased Subsidiary EmployeesClosing;
(nf) adopt, approveother than the Consent Decree Modification, consent to the entry of (or propose amendment to) any change decree, judgment or order by any Governmental Authority, or enter into (or amend) any other agreements with any Governmental Authority, in each case to the respective Organizational Documents of Seller extent such decree, judgment, order or any agreement (or amendment) will materially interfere with or impose material additional costs in connection with Buyer’s ownership or operation of the Purchased SubsidiariesAssets or any portion of the Business from and after the Closing;
(og) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownershipFacilities in the Ordinary Course of Business;
(h) fail to maintain insurance on the Purchased Assets at levels equal to or superior to existing insurance including with respect to coverage, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller deductibles or any other material terms, subject to commercially reasonable variations in coverage in connection with renewals for expiring insurance policies;
(i) fail to maintain levels of its Subsidiariescatalysts, supplies and spare parts at the levels maintained in the Ordinary Course of Business; or
(pj) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except as set forth Seller and its Subsidiaries shall in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall all material respects conduct the Business in the ordinary course consistent Ordinary Course of Business (including routine maintenance and routine preventative maintenance, and in material compliance with past practice Applicable Law) and shall use its their respective commercially reasonable efforts to preserve intact the Purchased Assets, the Business and its relationships with employees, agents, lessors, suppliers, customers and other third parties having business dealings with the Business, and to keep available the services of the present business organizations and goodwill employees of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in disclosed on Section 5.01 of the Seller Disclosure Schedule 5.01, or as expressly contemplated by hereby, neither Seller nor any of its Subsidiaries will, in each case with respect to the Transaction Documents (including Business, without the Restructuring) or with Buyer’s prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:):
(a) acquire a material amount of assets from any other Person (other than acquisitions of any materials, supplies or goods on a spot market basis in the Ordinary Course of Business);
(b) sell, lease, license or otherwise dispose of, or grant any right or Lien, except Permitted Liens, with respect to any Purchased Assets except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose Ordinary Course of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practiceBusiness;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(hi) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the conduct of the Business or that could, after the Closing Date, limit or restrict in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)Affiliates, from engaging or competing in any line of business, in any location or with any PersonPerson or (ii) enter into, amend or modify in any material respect or terminate any Material Contract other than in the Ordinary Course of Business;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(ld) (i) enter into grant or increase any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to (or amend any existing arrangement with) any Business Employee Employee, (ii) increase benefits payable under any existing severance or termination pay policies or employment agreements with any Business Employee, (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any Business Employee, (iv) establish, adopt or amend any Employee Plan or any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any Business Employee, or (v) increase the compensation compensation, bonus or other benefits payable to any Business Employee, in each case referred to in clauses (i) — (v), other than (A) as expressly required by the provisions of any Employee Plan, (B) in the ordinary course Ordinary Course of business consistent with past practices in all material respects or Business, (C) as required by Applicable Law, (D) as required by the terms of any Material Contract set forth on the Seller Disclosure Schedule or any Collective Bargaining Agreement or (E) as set forth on Section 5.01(d) of the Seller Disclosure Schedule;
(me) other than as required by Law enter into any settlement of any pending or in the ordinary course of business that would not materially increase the costs amend threatened litigation or terminate any Employee Plan or International Plan or adopt claim, or enter into any plan amendment of any existing settlement agreement, to the extent such settlement or arrangement that would be considered an Employee Plan amendment will materially interfere with or International Plan if it were impose material additional cost in existence on connection with the date hereof Buyer’s ownership or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any operation of the foregoing in Purchased Assets or any portion of the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as Business from and after the bargaining representative for any Business Employees or Purchased Subsidiary EmployeesClosing;
(nf) adopt, approveother than the Consent Decree Modification, consent to the entry of (or propose amendment to) any change decree, judgment or order by any Governmental Authority, or enter into (or amend) any other agreements with any Governmental Authority, in each case to the respective Organizational Documents of Seller extent such decree, judgment, order or any agreement (or amendment) will materially interfere with or impose material additional costs in connection with Buyer’s ownership or operation of the Purchased SubsidiariesAssets or any portion of the Business from and after the Closing;
(og) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownershipFacilities in the Ordinary Course of Business;
(h) fail to maintain insurance on the Purchased Assets at levels equal to or superior to existing insurance including with respect to coverage, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller deductibles or any other material terms, subject to commercially reasonable variations in coverage in connection with renewals for expiring insurance policies;
(i) fail to maintain levels of its Subsidiariescatalysts, supplies and spare parts at the levels maintained in the Ordinary Course of Business; or
(pj) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Conduct of the Business. From the date hereof until through the Closing Effective Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Company and each Company Subsidiary shall conduct the Business only in the ordinary course course, consistent with past practice and shall practices, in a manner consistent with the needs of the Business from the date hereof to the Effective Time. Without limiting the foregoing, the Company will use its commercially reasonable efforts to preserve intact the present Company’s business organizations relationships with employees, suppliers, customers and goodwill other third parties and use its commercially reasonable efforts to maintain its business and operations as an ongoing business consistent with the needs of the Businessbusiness and its operating budget for the current fiscal year. The Company shall not take any actions or enter into any transactions that would have a material adverse impact on the Company and the Company Subsidiaries, preserve without the present relationships prior written consent of Parent, such consent not to be unreasonably withheld or delayed. In addition, the Company will not (i) take or agree to take any action that might make any representation or warranty of the Business with customers and suppliers and maintain Company hereunder inaccurate in any material respect at, or as of any time prior to, the propertiesEffective Date or (ii) omit to take, machinery and equipment related or agree to the Business omit to take, any action necessary to prevent any such representation or warranty from being inaccurate in good repair and operation condition (subject to normal wear)any material respect at any such time. Without limiting the generality of the foregoing and subject to applicable LawFor example, from the date hereof until the Closing Effective Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyerwithout Parent’s prior written consent, such consent (not to be unreasonably withheld, conditioned withheld or delayed), with respect to neither the Business, Seller shall not and shall cause its Subsidiaries (including Company nor any Purchased Subsidiary) not toCompany Subsidiary shall:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur make any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice practice, which is not provided for in all material respectsthe most recently approved capital expenditure plan of the Company;
(b) except as contemplated by this Agreement, declare or promise to pay any dividends or other distributions with respect to its capital stock or equity securities other than distributions by wholly-owned Company Subsidiaries or tax distributions in the ordinary course consistent with past practice, or pay, declare or promise to pay any other payments to any Company Shareholder or any Affiliate of the Company;
(c) except for indebtedness for borrowed money currently outstanding, and indebtedness for borrowed money that may arise among the Company and the Company Subsidiaries, obtain or suffer to exist any further indebtedness for borrowed money in excess of U.S.$15 million, in the aggregate;
(d) merge or consolidate with or acquire any other Person or be acquired by any other Person other than as provided by this Agreement;
(e) extend any loans in excess of CAD$50,000 to any Person, other than travel, relocation or other expense advances to employees in the ordinary course of business;
(f) except as required by Lawin connection with the Company Financing, amend issue, redeem or modify in repurchase any material respect shares of its capital stock, other than pursuant to options, warrants or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of other rights existing on the date of this Agreement, in each case hereof or granted between the date hereof and the Effective Time to employees and other than any such Contract entered into service providers in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating pursuant to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability terms of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries arrangements with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity employees and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesservice providers; or
(pg) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly required by Applicable Law, as contemplated by applicable Law or by the Transaction Documents, with respect Documents (including the Pre-Closing Reorganization and settlement of intercompany accounts to any Excluded Liability or Excluded Asset, the extent set forth in Section 5.02) or with Buyer’s prior written consent (which consent shall not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause its Subsidiaries to, use reasonable best efforts to (x) conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to Ordinary Course, (y) preserve intact the present business organizations Business and goodwill of the Business, preserve the present relationships of the Business with each of its material customers and suppliers material suppliers, and maintain (z) keep available the propertiesservices of the present Business Employees that are executives (other than due to terminations of employment or absences from employment in the Ordinary Course), machinery and equipment related provided, however, that no action by Seller or any of its Subsidiaries with respect to any of the Business in good repair and operation condition matters addressed by Sections 5.01(a) through (subject to normal wear)m) shall be deemed a breach of the foregoing unless such action would constitute a breach of such Sections. Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Datesentence, except as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly required by Applicable Law, as contemplated by the Transaction Documents (including the RestructuringPre-Closing Reorganization and settlement of intercompany accounts to the extent set forth in Section 5.02) or with Buyer’s prior written consent (which consent shall not to be unreasonably withheld, conditioned or delayed), solely with respect to the Business, Seller shall not not, and shall cause its Subsidiaries not to (including except, in each case, as expressly contemplated by any Purchased Subsidiary) not to:other clause):
(a) amend in any material respect the articles or certificate of incorporation or other organizational documents of an Acquired Entity;
(b) acquire a material amount of assets (including capital stock) from any Person (other Person than Seller or any Subsidiary of Seller) except (i) pursuant to existing Contracts contracts or commitments, (ii) otherwise in the ordinary course Ordinary Course consistent with past practice or (in all material respects)iii) assets that would constitute Excluded Assets if held by Seller or its Subsidiaries at the Closing;
(bc) sell, lease, license license, abandon or otherwise dispose of any Purchased Assets Shares, any asset that would constitute a material Purchased Asset if held by Seller at the Closing or assets any material asset of the Purchased Subsidiaries an Acquired Entity (other than Non-Business Assets), or in either case, any interests therein, Intellectual Property) except (i) pursuant to existing Contracts, contracts or commitments or (ii) otherwise sales of inventory or disposals of assets in the ordinary course consistent with past practiceOrdinary Course;
(ci) create other than dividends or otherwise incur distributions payable in cash, declare, set aside or pay any Lien on any Purchased Asset dividend or any asset other distribution with respect to the Acquired Entity Securities, (ii) issue, sell, transfer, pledge, dispose of any Purchased Subsidiaryor encumber or agree to issue, sell, transfer, pledge, dispose of or encumber (other than Permitted Liens and with respect or other Liens that would not be material to the Business, taken as a whole) any Acquired Entity Securities to any Person (other than as may be required in connection with the Pre-Closing Reorganization), (iii) split, combine or reclassify the Purchased SubsidiariesShares or any other outstanding Acquired Entity Securities or issue or authorize the issuance of any other securities in respect of, Liens with respect to in lieu of or in substitution therefor, or (iv) redeem, purchase or otherwise acquire, directly or indirectly, any Acquired Entity Securities, except, in the Non-case of each of clauses (i) through (iv), as required by any Business AssetsBenefit Plan;
(de) incur any capital expendituresexpenditures in respect of the Business, except for those (i) aggregate capital expenditures contemplated by Seller’s fiscal year 2022 forecast for capital expenditures reflected in the capital expenditure budget financial model made available to Buyer prior to the date of this Agreement and Agreement, (ii) unbudgeted capital expenditures not to exceed five hundred thousand dollars ($100,000 500,000) individually or five million dollars ($1,000,000 5,000,000) in the aggregate;
aggregate or (eiii) other than amounts to be paid in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect full prior to the Business, other than Closing or reflected as a Current Liability in the ordinary course of business consistent with past practice in all material respectsClosing Net Working Capital;
(f) make any material loans or advances to any Business Employee, other than (i) in the Ordinary Course or (ii) amounts to be paid in full prior to the Closing or reflected as a Current Liability in Closing Net Working Capital;
(g) except as required by Applicable Law, amend or modify any Material Contract in any material respect way materially adverse to the Business, or voluntarily terminate any Contract listed in Schedule 3.09Material Contract, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsOrdinary Course;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or (excluding any right relating to an asset or liability that would constitute an Excluded Asset or Excluded Liability, respectively, if held by Seller at the transactions contemplated by this AgreementClosing), except (i) in the Ordinary Course or (ii) where such settlement or compromise would not involve payments in excess of one million dollars ($1,000,000) in excess of third-party insurance that will not be paid as of the Closing or included in the calculation of the Purchase Price, in each case, that does not impose any material ongoing non-monetary obligation or limitation on the Business;
(ji) with respect to any the Business and each Acquired Entity and the Purchased SubsidiaryAssets, (i) make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, accounting or (ii) enter into any closing agreementagreement in respect of Taxes (other than Taxes included in the definition of Retained Tax Liabilities) with any Taxing Authority, settle including the settlement or compromise of any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim (other than a Tax refundclaim with respect to Retained Tax Liabilities), in each case except in the ordinary course of business consistent with past practices in all material respects or (A) if such action will is not reasonably expected to have no a material effect and adverse impact on Buyer, or (B) to the Tax Liability of extent related to the Purchased Subsidiary Seller Group;
(j) with respect to each Acquired Entity, incur any indebtedness for borrowed money other than for Pre-Closing Taxes(i) in an amount not to exceed five million dollars ($5,000,000) in the aggregate, (ii) accounts receivable factoring or (iii) pursuant to intercompany notes extended by Seller or any of its Subsidiaries);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)Business, except for any such change required by reason of a concurrent change in GAAPGAAP or Applicable Law;
(l) materially increase the compensation or benefits of any Business Employee other than (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement annual salary or other similar agreement entered into with any Business Employee wage rate or Purchased Subsidiary Employee (or any amendment to any such existing agreement)target bonus adjustments made in the Ordinary Course, (ii) other than as provided under required by Applicable Law, the Severance Plan, grant any new severance or termination pay to terms of any Business Employee Benefit Plan or any applicable collective bargaining or works council agreement in effect as of the date hereof, (iii) increase any adjustments to health and welfare plans that generally apply to employees of Seller and its Affiliates as a whole and that is made in the compensation payable Ordinary Course, or to any Business Employee, in each case one of more of Seller’s business units as a whole other than the Business, or that otherwise does not seek to target the Business or Business Employees, or (iv) for which Seller and its Affiliates (other than the Acquired Entities) shall be solely obligated to pay and as would not result in the ordinary course of business consistent with past practices in all material respects a liability to Buyer or as required by Lawan Acquired Entity;
(m) other than as required by Law assign, transfer, sell, abandon, fail to maintain, or permit to lapse any material Transferred Intellectual Property, except non-exclusive licenses granted in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;Ordinary Course; or
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For Notwithstanding the avoidance foregoing, nothing in this Section 5.01 shall restrict Seller or any of doubtits Subsidiaries, Seller shall be permitted in any respect, from taking any action to (i) cause each Purchased Subsidiary an Acquired Entity to dividend, distribute or otherwise pay to another Acquired Entity, Seller or any of its Affiliates (or another equityholder of such Acquired Entity) any or all of the cash and cash equivalents of such Purchased Subsidiary; its Cash, (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents Cash held in any bank account that is a Purchased Asset; and of an Acquired Entity or the Business, (iii) settle or otherwise terminate or eliminate intercompany balances balances, or terminate any contracts, between Seller and any Purchased Subsidiaryof its Subsidiaries, on the one hand, and Seller the Business or any Retained SubsidiaryAcquired Entity, on the other hand, and make capital increases or decreases in connection therewith, except in each case(iv) make or incur any intercompany loans among wholly owned Subsidiaries of Seller, (v) otherwise comply with or give effect to the provisions of this Agreement (including, for the avoidance of doubt, to effectuate the extent such transfer would hinder Pre- Closing Reorganization) or interfere with(vi) take (or omit to take) any action that Seller or any of its Subsidiaries determines, in its sole discretion, is reasonable in response to COVID-19 or otherwise adversely affect, the ordinary course conduct of the Businessany COVID-19 Event.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01Sellers shall, as expressly contemplated by applicable Law or by and Stockholder shall cause the Transaction DocumentsCompany to, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and in substantially the same manner as it has prior to the date of this Agreement and Sellers agree, other than in the ordinary course of business, not to enter into any material agreements or take any other significant actions without the prior written consent of ATC or Buyer, which shall not be unreasonably withheld. Sellers shall use its commercially their reasonable efforts to preserve intact the present business Business and the Business organizations and relationships and goodwill of the Business, preserve Company with third parties and keep available the services of the present relationships employees of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)Company. Without limiting the generality of the foregoing and subject to applicable Lawexcept as otherwise expressly provided in this Agreement, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in Sellers will, and Stockholders will cause the ordinary course consistent with past practice (in all material respects);Company to:
(bA) sell, lease, license or otherwise dispose of any Purchased maintain the Transferred Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in operating order and condition, reasonable wear and tear excepted, (B) promptly repair, restore or replace any Transferred Assets in the ordinary course of business consistent with past practice, (C) upon any damage, destruction or loss to any of the Transferred Assets, apply any and all insurance proceeds received with respect thereto to the repair, replacement and restoration thereof prior to the Closing Date to the condition of such assets before such event (or in lieu of such repair, replacement and restoration, pay such insurance proceeds to Buyer upon the Closing), (D) use its best efforts to obtain, prior to the Closing Date, all Required Approvals and Consents, and (E) take all actions reasonably necessary to be in compliance with, and to maintain the effectiveness of, all material respectsPermits;
(fii) comply with all material Applicable Laws;
(iii) promptly notify Buyer in writing of (A) any action, event, condition or circumstance, or group of actions, events, conditions or circumstances, that results in, or could reasonably be expected to result in, a Material Adverse Effect, other than changes in general economic conditions, (B) the commencement of any material Proceeding by or against the Company or either Stockholder relating to the Business, or the Company or either Stockholder becoming aware of any threat, claim, action, suit, inquiry, proceeding, notice of violation, demand letter, subpoena, government audit or disallowance that could reasonably be expected to result in a material Proceeding against the Company, and (C) the occurrence of any breach by Sellers or Stockholders of any representation or warranty, or any covenant or agreement, contained in this Agreement;
(b) without Buyer's prior consent, which shall not be unreasonably withheld, Sellers will not, and Stockholders shall not permit the Company to, do or agree to do any of the following:
(i) purchase or otherwise acquire assets from any other Person other than in the ordinary course of business;
(ii) sell, assign, lease, license, transfer or otherwise dispose of, or mortgage, pledge or encumber, any of the Transferred Assets except as required in the ordinary course of business consistent with past practices;
(iii) enter any agreement or arrangement that requires or allows payment, acceleration of payment or incurrence of Liabilities, or the rendering of services by Law, the Company outside the ordinary course of business;
(iv) amend or modify in any material respect or terminate any Scheduled Contract listed or any other Contract entered into by the Company after the date hereof which, if in Schedule 3.09existence on the date hereof, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed set forth in Schedule 3.09 if such SCHEDULE 3.13
(a) as a Scheduled Contract were in place as of the date of this Agreement(each, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsa "Subsequent Material Contract");
(hv) make or commit to make any capital expenditure or group of related capital expenditures in excess of $10,000, other than capital expenditures expressly required under any Scheduled Contract;
(vi) enter into or commit or propose to enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any PersonSubsequent Material Contract;
(ivii) settle, (A) increase the rate or offer terms of compensation payable or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect become payable to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case employee except in the ordinary course of business consistent with past practices business, (B) pay or agree to pay any pension, retirement allowance or other employee benefit not provided for by any Employee Plan, Benefit Arrangement or Employment Agreement set forth in all material respects the Schedules hereto, (C) commit itself to any additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, continuation pay, termination pay, retirement or if such action will have no material effect on other employee benefit plan, agreement or arrangement, or increase the Tax Liability rate or terms of any Employee Plan or Benefit Arrangement, (D) enter into any employment agreement, (E) increase the Purchased Subsidiary rate of compensation under or otherwise change the terms of any employment agreement set forth in SCHEDULE 3.13(a), or (other than for Pre-Closing Taxes);F) hire or agree to hire any management personnel; and
(kviii) make any material change in any method of its accounting principles, methods or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course manner it keeps its books and records or any material change of business its current practices with regard to sales, receivables, payables or accrued expenses that would not materially increase affect the costs amend timing of income recognition, collection of receivables or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any payment of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businesspayables.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aftermarket Technology Corp)
Conduct of the Business. From the date hereof until the Closing Date, except Except as set forth in on Schedule 5.015.4, as expressly contemplated by applicable Law required or permitted by the Transaction Documents, with respect terms and conditions of this Agreement or as otherwise consented to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)by Buyer in writing, Seller shall (and shall cause each of its Affiliates to, including, without limitation, the CenturyTel Entities) conduct and operate the Business (i) in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact in compliance in all material respects with all Requirements of Law, including, without limitation the present business organizations Communications Act and goodwill the rules, regulations and orders of the BusinessFCC and the State Commissions and (ii) in such a manner that at all times prior to and on the Closing Date, preserve the present relationships representations and warranties of the Business with customers Seller contained in this Agreement shall be true and suppliers correct as though such representations and maintain the properties, machinery warranties were made at and equipment related to the Business in good repair and operation condition (subject to normal wear)as of such times. Without limiting the generality of the foregoing and subject to applicable Law, from or otherwise with the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer, Seller shall (not to be unreasonably withheldand shall cause each of its Affiliates to, conditioned or delayed)including, without limitation, the CenturyTel Entities) observe and comply with the following covenants with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount use its reasonable best efforts to preserve intact the services of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects)its employees, agents, dealers, distributors and resellers;
(b) not sell, lease, license license, or otherwise dispose dispose, in whole or in part, any of its assets, properties or rights or any Purchased Assets right, title or assets interest therein or thereto, including, without limitation, the Assets, Real Property or the Company Authorizations, other than the sale of Inventory in the ordinary course of Business consistent with past practice or the lease of space on a Tower to Third Parties on terms consistent with those imposed during the period from January 1, 2001 through December 31, 2001 and consistent in frequency and amount with the leasing activity of the Purchased Subsidiaries Business that occurred during such twelve month period;
(other than Non-Business Assetsc) use its reasonable best efforts to preserve its relations and goodwill with its suppliers, subscribers (including, without limitation, Postpay Subscribers), partners and any other Person having a business relationship with it;
(d) maintain (including, without limitation, through the making of capital improvements) the Assets in good repair, working order and condition, including, without limitation, preserving the equipment, systems and other fixed assets as necessary to keep the existing functionality and reliability thereof and to support Seller's anticipated growth and associated capacity requirements and use its reasonable best efforts to maintain the reliability standards, footprint coverage and network capacity;
(e) keep in full force and effect the insurance policies set forth on Schedule 3.10;
(f) conduct and, as applicable, continue the rate plans and promotions as disclosed on Schedule 3.25;
(g) not grant or otherwise commit to make any increase in either case, the compensation of the Eligible Employees or Leave Recipients or modify or amend any interests thereinbenefits provided to any Eligible Employee or Leave Recipient, except (i) pursuant to existing Contracts, as mandated by a Requirement of Law or (ii) otherwise to the extent required by any agreement, plan, commitment or program existing on the date hereof and disclosed in the Schedules;
(h) not enter into any employment or consulting agreement with any Eligible Employee, Leave Recipient or any other Person other than any such agreement that is terminable at will without Liability or that will not impose any Liability upon the Buyer or its Affiliates (including, without limitation, the CenturyTel Entities) subsequent to the Closing;
(i) use its reasonable best efforts to bill and collect its receivables and pay its trade payables consistenx xxth past practice;
(j) maintain customer service operations in the ordinary course of Business consistent with past practice, and refrain from changing any policies or practices relating to customer service in any material manner;
(k) not implement any change in (i) the terms and conditions of forms of customer and subscriber agreements or (ii) the rate plans or products and services being provided to subscribers (including, without limitation, Postpay Subscribers) of the Business, including, without limitation, those disclosed on Schedule 3.25;
(l) not incur any Indebtedness (other than trade payables for which Buyer receives an adjustment to the Purchase Price in accordance with Article 2), except for advances from Seller or its Affiliates;
(m) not redeem, repurchase or acquire any Shares or any capital stock, limited partner interest, general partner interest, membership interest, unit or other equity or similar interest in any Person, except pursuant to First Refusal Rights in accordance with Section 5.5(f);
(n) not issue, sell or dispose of any capital stock, limited partner interest, general partner interest, membership interest, unit or other equity or similar interest in a CenturyTel Entity or Cellular Entity, or any securities, options, warrants, obligations or other rights convertible or exchangeable into or exercisable for, or give any Person a right to subscribe for or acquire, any stock, limited partner interest, general partner interest, membership interest, unit or other equity or similar interest in any CenturyTel Entity or Cellular Entity, other than pursuant to First Refusal Rights in accordance with Section 5.5;
(o) use its reasonable best efforts to ensure that all agreements, understandings, arrangements, commitments or obligations entered into after the date hereof and before the Closing Date do not require the consent of any other Person who is a party thereto or bound thereby to consummate the Stock Sale or the transactions contemplated hereby;
(p) not amend or modify the certificate of incorporation, bylaws, general partnership agreement, limited partnership agreement, operating agreement or other similar organizational or management documents (including, without limitation, the Cellular Agreements) of a CenturyTel Entity or Cellular Entity;
(q) not split, combine or reclassify the respective outstanding shares of capital stock, limited partner interest, general partner interest, membership interest, unit or other equity or similar interest of a CenturyTel Entity or Cellular Entity;
(r) not terminate or amend, modify or waive any terms or conditions of any Material Contract or fail to perform, enforce or exercise any material rights or obligations under any Material Contract, except for terminations that occur automatically in accordance with the provisions of any such contract and terminations effected by a CenturyTel Entity upon a default by any other party to any such contract;
(s) not enter into any new contract, agreement, understanding, arrangement, commitment or obligation that would constitute a Material Contract hereunder other than any contract, agreement, understanding, arrangement, commitment or obligation, irrespective of the amounts payable thereunder, that would constitute a Material Contract under Sections 3.9(vi), (x), (xii) or (xiii) entered into in the ordinary course of Business consistent with past practice;
(ct) create not declare, set aside or otherwise incur pay any Lien on noncash dividend or make any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and noncash distribution with respect to the Purchased Subsidiariescapital stock, Liens limited partner interests, general partner interests, membership interests, units or other equity or similar interests of any CenturyTel Entity or Cellular Entity;
(u) use its reasonable best efforts to maintain all of its right, title and interest in and to, and the validity of, the Company Authorizations, and not engage in any transactions or take any action or omit to take any action which will or would reasonably be likely to adversely affect any right, title or interest in and to, or the validity of, any of the Company Authorizations;
(v) not materially change any policies or procedures with respect to the Non-Business Assetsclassification or treatment of disconnects or the granting of adjustments to subscriber accounts;
(dw) incur maintain levels and types of Inventory in the ordinary course of Business consistent with past practice, and shall not capitalize the costs of cellular handsets or accessories or any capital expendituresmarketing, except for those contemplated by the capital expenditure budget made available to Buyer prior advertising or similar costs related to the date acquisition of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregatesubscribers;
(ex) other than in connection with actions permitted by Section 5.01(a) not change any accounting policy, procedure or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person methodology with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(fincluding, without limitation, those specified on Schedule 1.1(a) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or those relating to the transactions contemplated by this Agreement;
recognition of revenue or the deferral, classification or allocation of expenses or charges (j) with respect to any Purchased Subsidiaryincluding, make or change any Tax electionwithout limitation, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing TaxesAffiliated Charges);
(ky) make not terminate, amend, modify or waive any material change in any method of accounting terms or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license conditions of any material Business Intellectual Property Rightagreement, whether as licensor contract or as licenseecommitment for roaming services (including, other than in without limitation, the ordinary course of the Business consistent agreements, contracts or commitments with past practice in all material respects, Roaming Partners) or fail to make any filingperform, pay any feeenforce, or take exercise any material rights or obligations thereunder; and
(z) not agree, orally or in writing, or grant any other action necessary to maintain the ownershipPerson, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit an option to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to things specified in subparagraphs (ia) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; through (iiy) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessabove.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until Effective Date and prior to the earlier to occur of the Closing DateDate and the date that this Agreement is validly terminated in accordance with Article IX (the “Interim Period”), except as set forth in Schedule 5.01, except: (i) as expressly required or expressly permitted by this Agreement (including as described on Schedule 7.1 of the Seller Disclosure Schedules and the other matters contemplated by applicable the other Schedules and Exhibits hereto) or any of the other Ancillary Agreements or as required by Law or by the Transaction Documents, with respect to (including any Excluded Liability or Excluded AssetCOVID-19 Measures and any action taken, or with Buyer’s prior written consent omitted to be taken, by Seller or its Affiliates pursuant thereto); (ii) for the effect of the announcement and consummation of the Transactions; and (iii) as otherwise approved in writing by Buyers (which approval shall not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall conduct cause its Affiliates, including CEIP and Labo, to use commercially reasonable efforts to operate the Purchased Assets and the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill Ordinary Course of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition .
(subject to normal wear). b) Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from during the date hereof until the Closing DateInterim Period, except as set forth in otherwise contemplated by this Agreement (including as described on Schedule 5.01, as expressly 7.1 of the Seller Disclosure Schedules and the other matters contemplated by the Transaction Documents other Schedules and Exhibits hereto) or any of the other Ancillary Agreements, in the Ordinary Course of Business, or as required by Law (including any COVID-19 Measures and any action taken, or omitted to be taken, by Seller or its Affiliates pursuant thereto), or the Restructuring) terms of any Contract to which Seller or with Buyer’s prior written consent any of its Affiliates is a party, and except as otherwise approved in writing by Buyers (which approval shall not to be unreasonably withheld, conditioned conditioned, or delayed), Seller shall not (with respect to the Business, Seller shall not Purchased Assets and Assumed Obligations), and shall cause its Subsidiaries (Affiliates, including any Purchased Subsidiary) CEIP and Labo, not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, leaselease (as lessor), license transfer, or otherwise dispose of any of the Purchased Assets, other than: (A) the use, disposal or sale of Inventory in the Ordinary Course of Business; (B) the disposal of Purchased Assets having an aggregate value of less than $3,000,000; or (C) the disposal of obsolete, defective, or surplus Purchased Assets that are no longer useful in the Business;
(ii) terminate, assign or relinquish any material rights under, grant any material waiver or material consent under, or amend in any material respect, any of the Material Contracts or Transferable Permits, except for: (A) the expiration of any Material Contract or Transferable Permit in accordance with its terms and (B) amendments in the Ordinary Course of Business, including to extend the term of any such Material Contract or Transferable Permit;
(iii) enter into any Transferred Contract that would constitute a Material Contract if in existence as of the date hereof unless such Transferred Contract is an agreement for the provision of commodities, goods, software, or services by any Third Party (other than an Affiliate) entered into in the Ordinary Course of Business that may be terminated by Buyers, without penalty or cost, on no more than 90 days prior written notice following the Closing;
(iv) materially increase or decrease the number of, or transfer a material number of employees from, the positions of employment in which Business Employees are employed, except in the Ordinary Course of Business;
(v) grant any increase in the compensation of, or grant any bonus or retention or severance pay to, Business Employees, except: (A) for increases in compensation and bonuses in the Ordinary Course of Business; (B) for bonuses, including long-term incentive awards, and retention and severance pay that will be fully paid by Seller; and (C) for any acceleration of the vesting or payment of any cash incentive, equity or equity-based compensation that will be paid by Seller;
(vi) settle or compromise any pending or threatened action, suit, or proceeding or any claim or claims, that in the aggregate, would reasonably be expected to be greater than $5,000,000;
(vii) fail to make capital expenditures in accordance with the capital plan set forth on Schedule 7.1(b)(vii), subject to a 10% annual variance;
(viii) fail to (A) pay and perform its obligations under any Lease or Purchased Easement, or (B) maintain the Real Property in the Ordinary Course of Business;
(ix) purchase or acquire, or enter into any purchase and sale agreement, lease, or sublease with respect to real property in excess of $250,000 on an individual basis;
(x) enter into any Contract with any union or labor organization (including any Collective Bargaining Agreement if entered into by Seller with respect to any Business Employees) or amend or modify any Collective Bargaining Agreements in any material respect;
(xi) with respect to Asset Taxes or Taxes and Tax Returns of Labo, (A) make, revoke or change any material election, (B) settle or compromise any Tax audit, claim, or assessment of any material liability for Taxes, (C) file any amendment to a Tax Return which may result in a material adjustment of any item of income, gain, deduction or loss with respect to the Business, (D) enter into any closing agreement or obtain any Tax ruling affecting any material Tax liability or refund, (E) surrender any right to claim a refund of any material Tax liability or refund, (F) consent to any extension or waiver with respect to any material Tax claim, assessment, or liability, or (G) change any material Tax accounting methods, provided, however, that nothing in this Section 7.1(b)(xi) shall prevent Seller from taking any action that generally affects the assets or business of Seller or that primarily affects the assets or business of Seller other than the Purchased Assets or the Business;
(xii) with respect to Labo:
(1) authorize for issuance, issue, grant, sell, deliver or dispose of, or grant to any Person any right or option to acquire any Interests of Labo or its Subsidiaries, or Interests convertible into such Interests, or any rights, warrants, calls, subscriptions or options to acquire any such Interests or convertible Interests or (2) amend any term of any Interests of Labo or its Subsidiaries, or any Interests convertible into any such Interests, or any rights, warrants, calls, subscriptions or options to acquire any such Interests or convertible Interests (in each case, whether by merger, consolidation, acquisition of stock or assets or otherwise);
(B) merge or amalgamate into or with any Person or consolidate with any Person or acquire all or substantially all of the business or assets of, or enter into any joint venture or partnership arrangement with, another Person;
(C) sell, transfer or otherwise dispose of any of the material assets of the Purchased Subsidiaries (Labo, other than Non-Business Assets)the use, disposal or sale of Inventory in either casethe Ordinary Course of Business;
(D) acquire, outside of the ordinary course of business or consistent with past practice or industry practice, any interests thereinmaterial assets or liabilities;
(E) commit Labo to declaring or paying any distribution or dividend to any Person, except for distributions of available cash to Seller in the Ordinary Course of Business;
(F) amend, supplement, modify or waive or propose to amend (including by failure to enforce the terms thereof) the Governing Documents of Labo;
(G) change the U.S. federal income tax classification of Labo;
(H) except in the Ordinary Course of Business, permit Labo to (i) pursuant to existing Contractscreate, incur, assume, guarantee, endorse or otherwise become liable or responsible (whether directly or indirectly) for any Indebtedness or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;Person; or
(fI) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any a plan of complete or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Planpartial liquidation, or promise to commit to undertake any of the foregoing in the future or enter intodissolution, amend or extend any Bargaining Agreement or recognize any union restructuring, recapitalization or other labor organization as the bargaining representative for reorganization or make any Business Employees voluntary bankruptcy or Purchased Subsidiary Employeesinsolvency filing (or consent to any involuntary filing) or reorganization;
(nxiii) adoptmerge or amalgamate into or with or consolidate with, approve, consent to acquire all or propose any change in the respective Organizational Documents of Seller or any substantially all of the Purchased Subsidiaries;
(o) negotiate business or assets of, or enter into any license of any material Business Intellectual Property Rightjoint venture or partnership arrangement with another Person, whether as licensor or as licenseein each case, other than in involving the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; orBusiness;
(pxiv) agree or commit to do take any action which would be a violation of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held restrictions set forth in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 7.1(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Centerpoint Energy Resources Corp)
Conduct of the Business. From Except as otherwise provided herein or authorized by the Bankruptcy Court prior to the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawhereof, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toSeller:
(a) acquire a shall conduct the Business in the ordinary course and shall use commercially reasonable efforts to preserve intact the business organizations and relationships with third parties and to keep available the services of the present employees of the Business consistent with its duties as debtor in possession under the Bankruptcy Code;
(b) except to the extent necessary to comply with the requirements of applicable laws, regulations or Bankruptcy Court orders, shall not take or agree to commit to take any action that it knows would make any representation or warranty of the Seller hereunder inaccurate in any material amount respect at, or as of assets from any other Person time prior to, the Closing Date;
(c) shall not offer credit terms or trade promotions except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and practices with respect to the Purchased Subsidiaries, Liens with respect applicable product lines of the Seller or except to the Non-Business Assets;extent reasonably necessary to be competitive with competitors' comparable product offerings; and
(d) incur any capital expendituresshall not, except for those contemplated by without the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)Purchaser's Consent, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract a purchase order or sale order entered into in the ordinary course course) which requires aggregate payments of business consistent with past practice more than $50,000. "Purchaser's Consent" means the Purchaser's consent (which shall not unreasonably be withheld) to the matters described in all material respects and on customary terms;
this clause (hd) enter into any agreement of this Section 5.07. The Purchaser shall be deemed to have given such consent if it shall not have notified Xxxxxx X. Xxxxxxxxxxx by e-mail (xxx@xxxxxxx.xxx) or facsimile ((000) 000-0000) of its disapproval of such contract or arrangement that limits or otherwise restricts in any material respect not later than the Business, Buyer or any end of their respective Affiliates the next business day after delivery of an e-mail communication to each of Xxxxxxx Xxxx (including the Purchased Subsidiaries after the Closing Datexxxxx@xxxxxxxxxxxxxxxxxx.xxx), from engaging or competing in any line of business, in any location or with any Person;
Xxxx Xxxx (ixxxxx@xxxxxxxxxxxxxxxxxx.xxx) settle, or offer or propose to settle, any and Xxx Xxxxxx (xxxxxxx@xxxxxxx.xxx) which sets forth the material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity terms and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents conditions of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.contract or
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the earlier of the Closing DateDate or the termination of this Agreement pursuant to Section 8.01, except as set forth otherwise provided for by this Agreement (including the Disclosure Schedules) or consented to in Schedule 5.01, as expressly contemplated writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (will not to be unreasonably withheld, conditioned or delayed), Seller shall the Company will conduct its business and the Business business of its Subsidiaries in the ordinary course consistent with past practice of business and shall use its commercially reasonable efforts to preserve (i) keep intact the present business organizations and goodwill organization of the BusinessAcquired Companies, preserve (ii) maintain the present relationships assets of the Business with customers Acquired Companies in good operating condition and suppliers repair (normal wear and tear excepted) and (iii) maintain in full force and effect the propertiesexistence of all material and necessary Intellectual Property of the Acquired Companies; provided that, machinery and equipment related the foregoing notwithstanding, the Acquired Companies may use all available cash to pay any Seller Transaction Expenses or Indebtedness prior to the Business Closing, for distributions or dividends or for any other purpose, provided that the Acquired Companies shall not make any payments, cash dividends or cash distributions that, individually or in good repair and operation condition the aggregate with other payments, dividends or distributions, would (subject x) violate any Laws relating to normal wear). solvency, fraudulent conveyance or the rights of creditors, or (y) reduce the capital of the Company or any Subsidiary below any minimum amount required by Law.
(b) Without limiting the generality of the foregoing Section 6.01(a), and subject to applicable Lawexcept as set forth on Schedule 6.01(b), from the date hereof until the earlier of the Closing DateDate or the termination of this Agreement pursuant to Section 8.01, except as set forth otherwise provided for by this Agreement or consented to in Schedule 5.01, as expressly contemplated writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (will not to be unreasonably withheld, conditioned or delayed), with respect to the BusinessCompany will not, Seller shall and will not and shall cause permit any of its Subsidiaries (including to, take any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sellaction which, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to if taken after the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)Latest Balance Sheet but before the date hereof, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in on Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose 4.06 pursuant to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessSection 4.06.
Appears in 1 contract
Conduct of the Business. From the date hereof until the earlier of the Closing DateDate and the date this Agreement is terminated in accordance with its terms, except as set forth in Schedule 5.01Section 5.02 of the Buyer Disclosure Schedule, as expressly contemplated required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetother provision of this Agreement, or otherwise with BuyerSeller’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Buyer shall, and shall cause its Subsidiaries to, conduct the Business its business in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)practice. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the earlier of the Closing Date, except as set forth Date and the date this Agreement is terminated in Schedule 5.01accordance with its terms, as expressly contemplated required by the Transaction Documents (including the Restructuring) applicable Law or any other provision of this Agreement, or otherwise with BuyerSeller’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Buyer shall not and shall cause its Subsidiaries (including not to amend or modify Buyer’s Organizational Documents except for amendments which are not reasonably expected to result in any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except adverse impact to Seller. Further, in the event (i) pursuant to existing Contracts or (ii) otherwise of changes in the ordinary course consistent with past practice (in all material respects);
(b) selloutstanding Buyer Ordinary Shares by reason of share dividends, leasesplit-ups, license recapitalizations, reclassifications or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to combinations after the date of this Agreement and unbudgeted capital expenditures not prior to exceed $100,000 individually or $1,000,000 the Closing, the number of Buyer Ordinary Shares comprising the Share Consideration shall be correspondingly adjusted to give Seller the total number, class and kind of shares of Buyer as Seller would have owned had the Closing occurred immediately prior to the event in question and had Seller continued to hold the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions toShare Consideration until after the event requiring adjustment, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(fii) except as required by Law, amend Buyer pays an extraordinary cash dividend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of distribution after the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects Agreement and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating prior to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affectClosing, the ordinary course conduct number of the Business.Buyer Ordinary
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by Microsoft will cause the Transaction Documents, with respect Company to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts efforts, without paying or increasing the compensation, payments, remuneration or fees payable to any Person other than in the ordinary course of business, to preserve intact the present business organizations and relationships and goodwill of with third parties PROVIDED, HOWEVER, that with respect to Microsoft's employees and contingent staff, Microsoft shall have no obligation other than as set forth in the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition Transition Services Agreement (subject to normal wearas defined below). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) without Parent's prior consent (which consent shall not be unreasonably withheld), Microsoft will not allow the Company to and will not agree to allow the Company to:
(i) purchase or otherwise acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts Person, or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license sell or otherwise dispose of transfer any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectsbusiness;
(fii) incur any Liability, except as required Liabilities (A) incurred in the ordinary course of business where the aggregate dollar amount of all such Liabilities incurred by Lawthe Business does not exceed One Hundred Thousand Dollars ($100,000), (B) incurred pursuant to existing obligations of the Company or Microsoft in connection with the Business that are disclosed in the Schedules hereto or (C) expressly contemplated by the terms of this Agreement;
(iii) amend or modify in any material respect or terminate any Material Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into by the Company or Microsoft in connection with the Business after the date hereof which, if in existence on the date hereof, would be considered a Material Contract (each, a "SUBSEQUENT MATERIAL CONTRACT"); or
(iv) make or commit to make any capital expenditure, or group of related capital expenditures, in excess of One Hundred Thousand Dollars ($100,000) for the Business, other than (y) capital expenditures set forth on SCHEDULE 5.01(a)(iv) and (z) capital expenditures expressly required under any Material Contract.
(b) In connection with the Business, Microsoft shall cause the Company to:
(A) maintain its assets in the ordinary course of business consistent with past practice in all material respects reasonably serviceable operating order and on customary terms;
condition, reasonable wear and tear, damage by fire and other casualty excepted, (hB) enter into any agreement promptly repair, restore or arrangement that limits or otherwise restricts in replace any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except assets in the ordinary course of business consistent and (C) upon any damage, destruction or loss to any of such assets, apply any and all insurance proceeds received with past practices in all material respects or if respect thereto to the prompt repair, replacement and restoration thereof to the condition of such action will have no material effect on assets before such event to the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)extent reasonably practicable;
(kii) make comply with all material Applicable Laws;
(iii) not allow any material change in any method of accounting or accounting practice of Seller or liens for Taxes to be placed on any of its Subsidiaries with respect to the Business (including assets of the Purchased Subsidiaries)Company, except for any such change required by reason of a concurrent change in GAAPliens arising from Taxes which are due but not yet payable;
(liv) use its commercially reasonable efforts to obtain, prior to the Closing Date, all Required Consents;
(iv) enter into take all actions within its reasonable control to be in compliance with, and to maintain the effectiveness of, all material Permits;
(vi) promptly notify Parent in writing if the Company or Microsoft has knowledge of any Bargaining Agreementaction, employmentevent, deferred compensationcondition or circumstance, severanceor group of actions, retirement events, conditions or other similar agreement entered into with any Business Employee circumstances that results in, or Purchased Subsidiary Employee (or any amendment could reasonably be expected to any such existing agreement)result in, (ii) a Material Adverse Effect, other than as provided under changes in general economic conditions;
(vii) promptly notify Parent in writing of the Severance Plancommencement of any Proceeding by or against the Business, grant or of becoming aware of any new severance material claim, action, suit, inquiry, proceeding, notice of violation, subpoena, government audit or termination disallowance that could reasonably be expected to result in a Proceeding; and
(viii) pay to any Business Employee or (iii) increase the compensation accounts payable to any Business Employee, in each case other than and pursue collection of its accounts receivable in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessbusiness.
Appears in 1 contract
Samples: Merger Agreement (Ticketmaster Online Citysearch Inc)
Conduct of the Business. (a) From the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with Section 9.1, except as set forth otherwise provided for by this Agreement or consented to in Schedule 5.01, as expressly contemplated by applicable Law or writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (will not to be unreasonably withheld, conditioned delayed or delayedconditioned), Seller Blocker and the Company shall (i) conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice and in compliance with all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)applicable Laws, (ii) other than as provided under the Severance Plan, grant any new severance or termination pay use commercially reasonable efforts to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of keep intact the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiaryuse commercially reasonable efforts to preserve in all material respects the Company’s and its Subsidiaries’ relationships with material customers and suppliers with whom they currently deal and key employees.
(b) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9.1, except as otherwise provided for by this Agreement, consented to in writing (email being sufficient) by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed) or as otherwise contemplated on Schedule 6.1(b) attached hereto, Seller Blocker and the one handCompany will not, and will not permit any of its Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet Date and prior to the date hereof, would have been required to be disclosed on Schedule 3.6 pursuant to Section 3.6. Notwithstanding anything to the contrary in this Section 6.1(b), Seller Blocker’s, the Company’s and its Subsidiaries’ failure to take any action prohibited by this Section 6.1(b) will not be a breach of Section 6.1(a).
(c) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9.1, neither Seller Blocker, the Company nor any of its Subsidiaries shall amend, modify or terminate any Retained SubsidiaryMaterial Contract.
(d) From the date hereof until the Closing Date, on Seller Blocker and the other handCompany will not, and make capital increases in connection therewithwill not permit any of their Subsidiaries to, except in each case(i) modify, amend, extend or terminate any Real Property Lease, (ii) enter into an agreement to the extent such transfer would hinder lease, sublease, license or interfere withoccupy any real property, (iii) enter into an agreement to purchase any real property, or otherwise adversely affect(iv) sublease, assign, 45 33067829.14 transfer, license or grant any third party any right to use or occupy the Leased Real Property (or enter into any agreement to do the same).
(e) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9.1, Seller Blocker, the ordinary course conduct of Company and its Subsidiaries shall use its commercially reasonable efforts to maintain in effect the Businessinsurance coverage described on Schedule 3.15 (or equivalent replacement coverage).
Appears in 1 contract
Conduct of the Business. (a) From and after the date hereof until the earlier of (A) the termination of this Agreement pursuant to Section 10.1 and (B) the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by Sellers shall cause the Transaction Documents, with respect Asset Selling Corporations and the Conveyed Companies to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct operate the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill course. In furtherance of the Businessforegoing, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related prior to the Business in good repair and operation condition Closing Date except (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except i) as set forth in on Schedule 5.015.2 or as otherwise contemplated, as expressly contemplated permitted or required by the Transaction Documents this Agreement (including the Restructuringexecution, delivery and performance of any agreements to be entered into pursuant to Section 7.7 hereof), (ii) or with Buyer’s prior written as Purchaser shall otherwise consent (in writing, which consent shall not to be unreasonably withheld, conditioned delayed or delayed)conditioned, and (iii) as may be necessary or advisable, in the sole discretion of Sellers, to remove any Excluded Assets from any Asset Selling Corporation and/or any Retained Assets from any Conveyed Company, Sellers covenant and agree that they shall cause the Conveyed Companies and the Asset Selling Corporations, in each case with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to maintain insurance coverage at levels consistent with presently existing Contracts or levels so long as such insurance is available at commercially reasonable rates;
(ii) otherwise in not acquire any material assets outside of the ordinary course consistent with past practice (in all material respects)of the Business;
(biii) not sell, lease, license license, abandon or otherwise dispose of any Purchased Assets or material assets of used in the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinBusiness, except (iA) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practiceof the Business, (B) to another Conveyed Company or Asset Selling Corporation whereby conveyance thereof shall be made to Purchaser as part of the Purchased Assets at the Closing or as otherwise owned by a Conveyed Company as of the Closing Date, or (C) pursuant to the transactions contemplated, permitted or required hereby;
(civ) create not materially increase or otherwise incur any Lien on any Purchased Asset materially enhance the compensation or any asset benefits of Employees other than in the ordinary course of the Business or as required by applicable Law;
(v) not change, amend or restate the charter, certificate of formation or incorporation, operating agreement or bylaws (or other comparable organizational or governing documents) of any Purchased SubsidiaryConveyed Company;
(vi) not authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (A) any capital stock of, or other equity or voting interest in, any Conveyed Company or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any capital stock of, or other equity or voting interest in, any Conveyed Company, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Conveyed Company;
(vii) not incur, assume or modify any Indebtedness (other than Indebtedness incurred in accordance with the cash management system of the Business), other than Permitted Liens in the ordinary course of the Business and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures in an aggregate amount not to exceed $100,000 individually or $1,000,000 in the aggregate250,000;
(eviii) other than not write-off as uncollectible any notes or accounts receivable of the Business, except write-offs in connection with actions permitted by Section 5.01(athe ordinary course of the Business;
(ix) not cancel or Section 5.01(d), make waive of any loans, advances claims or capital contributions to, or investments in, any other Person with respect rights of substantial value to the Business, other than in the ordinary course of business consistent with past practice in all material respectsthe Business;
(fx) except as required not sell, lease or dispose of any capacity on the Network Facilities pursuant to any IRU (including, for purposes of this Section 5.2(a)(x), any capacity lease or similar arrangement providing for a duration and other terms and conditions that are substantially similar in effect to those included in comparable IRUs granted by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course course) whereby the capacity to be sold, leased or disposed of business consistent pursuant to an IRU, when aggregated with past practice in all material respects other sales, leases or other dispositions of capacity pursuant to IRUs during any given calendar quarter, would exceed thirty (30) Gbps on each of the Atlantic, Pacific and Western Europe/Trans-US segments of the Network Facilities; provided that any transaction involving the lease or other disposition of any capacity on customary terms;
the Network Facilities for consideration payable on an upfront, lump-sum or other forward-weighted basis (h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than providing for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case payment other than in the ordinary course form of business regular monthly installments generally consistent with past practices in all material respects or as required by Law;
(mamount over the applicable transaction term) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would shall be considered deemed to be an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative IRU for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesthese purposes; or
(pxi) agree not execute any contract or commit letter of intent (whether or not binding) or other commitment or agreement, whether or not in writing, to do any of the foregoing. For .
(b) Notwithstanding anything contained in this Agreement to the avoidance of doubtcontrary, Sellers, the Seller Corporations and the Conveyed Companies shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all maintain the cash management system of the cash Business and cash equivalents of such Purchased Subsidiary; (ii) removeprocedures as currently conducted by Sellers, the Seller Corporations and the Conveyed Companies through the Closing Date. The Conveyed Companies shall be permitted to borrow funds from Sellers or cause any Subsidiary their Affiliates as is necessary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held operate the Business in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct and repay such borrowings in the ordinary course. Nothing contained in this Agreement shall give Purchaser, directly or indirectly, rights to control or direct the operations of the Business, the Purchased Assets or the Conveyed Companies prior to the Closing Date.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Videsh Sanchar Nigam LTD)
Conduct of the Business. From the date hereof until the relevant Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by Parent shall cause the Transaction Documents, with respect Sellers to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business operate their respective Properties in the ordinary course consistent with past practice and shall to use its their commercially reasonable efforts to preserve intact the present business organizations and goodwill relationships with third parties and to keep available the services of the Business, preserve the present relationships employees of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)Properties. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the such Closing Date, the Sellers will not, except as set forth in Schedule 5.01, as expressly contemplated by with the Transaction Documents (including the Restructuring) or with relevant Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to's consent:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of or encumber any of the Properties or other Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(gii) enter into any Contract (including a hedging contracts, loan documents, modification agreements or swap agreement or similar arrangement) that would be required to be disclosed other agreements in Schedule 3.09 if such Contract were in place as of any way affecting the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsProperties;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing; or
(iv) except for the transactions contemplated hereby, take any action that would make any representation or warranty of the Sellers hereunder inaccurate in any material respect at such Closing Date such that the closing condition set forth in Section 10.02(a)(ii) shall not be satisfied as of such date. For the avoidance of doubtEach Buyer agrees that its consents under this Section 5.01 shall not be unreasonably withheld, Seller delayed or conditioned, and shall be permitted to (i) cause each Purchased Subsidiary to dividenddeemed given if the relevant Buyer does not, distribute or otherwise pay to Seller or any within five business days after such Buyer's receipt of its Affiliates any or all of the cash and cash equivalents of a request for such Purchased Subsidiary; (ii) removeconsent, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, give notice to the extent relevant Seller stating that such transfer would hinder or interfere with, or otherwise adversely affectconsent is denied, the ordinary course conduct of reasons for such denial and the Businessconditions (if any) that would need to be complied with for such consent to be given (and if such conditions are complied with such consent shall be deemed given). Parent shall cause the relevant Seller to submit extraordinary management decisions to the relevant Buyer for its review but not for its approval or consent.
Appears in 1 contract
Conduct of the Business. From the date hereof of this Agreement until the Closing DateClosing, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by on Section 4.01 of the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Disclosure Schedule, Seller shall, and shall cause the Selling Affiliates and the Acquired Subsidiaries to, (A) conduct the Business in the ordinary course consistent with past practice and shall (B) use its commercially their respective reasonable best efforts to preserve intact (i) keep the Purchased Assets intact, valid and in effect, as appropriate, in the ordinary course of business consistent with past practice, (ii) maintain the present business organizations operations and goodwill of the Business, preserve the present relationships physical facilities of the Business in the ordinary course consistent with past practice and (iii) preserve their relationships with customers and suppliers and maintain the properties, machinery and equipment related to of the Business in good repair and operation condition (subject to normal wear)the ordinary course consistent with past practice. Without limiting the generality of the foregoing and subject to foregoing, except as contemplated by this Agreement, as set forth on Section 4.01 of the Disclosure Schedule or as required by applicable Law, from the date hereof of this Agreement until the Closing DateClosing, except as set forth Seller shall not, and shall not permit any Selling Affiliate or Acquired Subsidiary to, do any of the following in Schedule 5.01, as expressly contemplated by connection with the Transaction Documents (including Business without the Restructuring) or with Buyer’s prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:):
(a) acquire a sell, lease, license, remove or otherwise dispose of any material amount of assets from any other Person Purchased Assets except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens Inventory and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than Equipment in the ordinary course of business consistent with past practice in all material respectspractice;
(fb) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices practice, (i) acquire any material property or assets relating exclusively to the Business or (ii) subject any property or asset included in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary Assets to any Lien (other than for Pre-Closing TaxesPermitted Liens);
(kc) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices practice, (i) modify or amend in all any material respects respect, or as required by Lawterminate, release, assign or waive any material rights or claims under, any Material Contract, or (ii) enter into any new Contract that, if Seller, any Selling Affiliate or any Acquired Subsidiary had entered into such Contract immediately prior to the date of this Agreement, would be a Material Contract (including any Trade Agreement);
(md) other than as required by Law or except in the ordinary course of business that would not materially increase the costs amend consistent with past practice, adopt, enter into, terminate, amend, suspend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof cease making employer contributions to, or materially increase the benefits provided under or obligations under, any Employee Plan or International Company Benefit Plan, or promise except (i) as required pursuant to commit to undertake any Contracts in effect as of the foregoing date of this Agreement, (ii) as in the future or enter into, amend or extend any Bargaining reasonable judgment of management of Seller is required after the date of this Agreement or recognize any union or other labor organization as to retain and maintain for the bargaining representative for any benefit of the Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents services of the employees of Seller or any Selling Affiliate employed in connection with the Business, including by establishing a retention pool, incentive pay, stay-bonus or similar program in respect of such employees or (iii) as would not result in an increase in benefits or obligations with respect to the Purchased SubsidiariesBusiness Employees under any Company Benefit Plan;
(oe) negotiate (i) issue, deliver, pledge, encumber, dispose of, distribute or enter into cause to be granted to any license Person any capital stock or ownership interests of or in any Acquired Subsidiary or any other commitments or rights of any kind to acquire any such capital stock or ownership interests, or (ii) modify in any material Business Intellectual Property Rightrespect any of the organizational documents of any Acquired Subsidiary;
(f) with respect to the Acquired Subsidiaries only, whether make any changes in financial accounting methods, principles or practices, except as licensor may be required by a change in applicable Law;
(g) allow any Acquired Subsidiary to declare or as licensee, issue any dividend of any assets (other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariescash); or
(ph) agree enter into a binding written agreement or commit commitment to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From the date hereof of this Agreement until the Closing Date(or until the earlier termination of this Agreement in accordance with Section 11.1), except as required by applicable Law, as set forth in Schedule 5.01on Section 7.1 of the Seller Disclosure Schedule, as expressly contemplated by applicable Law this Agreement, any Ancillary Agreement or any Affiliate Transition Agreement, or as otherwise waived or consented to in writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (shall not to be unreasonably withheld, conditioned or delayed), the Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toshall:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in conduct the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(b) use commercially reasonable efforts to preserve substantially intact the organization of the Business;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset use commercially reasonable efforts to preserve intact the goodwill of any Purchased Subsidiarythe Business and the relationships of the Seller with the customers, other than Permitted Liens vendors, suppliers of the Business and others having significant business relations with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business AssetsBusiness;
(d) incur any capital expenditures, except for those contemplated by use commercially reasonable efforts to keep available the capital expenditure budget made available to Buyer prior to services of the date current Business Employees (provided that terminations of this Agreement and unbudgeted capital expenditures Business Employees with “cause” shall not to exceed $100,000 individually or $1,000,000 in the aggregaterequire consent);
(e) continue to maintain the Books, Records and Files of the Seller related to the Business on a basis consistent with past practice;
(f) pay all accounts payable and other than current obligations of the Seller related to the Business when they become due and payable in the ordinary course of business, except for account payable or other current obligations that are the subject of a good faith dispute;
(g) continue to make all necessary and material filings and payments with Governmental Authorities in connection with actions permitted by Section 5.01(athe Business in a timely manner, and use commercially reasonable efforts to maintain in effect all existing permits required for the ongoing operation of the Business as presently conducted;
(h) not (i) sell, assign, convey, transfer, intentionally subject to an Encumbrance or Section 5.01(d)lease (as lessor) any Purchased Assets, make any loansother than assets used, advances consumed or capital contributions toreplaced in the ordinary course of business, (ii) accelerate the collection of or investments indiscount, write off, forgive, waive or otherwise cancel, in whole or in part, any other Person with respect to Receivable included in the BusinessPurchased Assets, other than in the ordinary course of business consistent with past practice in all material respects;
(f) or except as required by GAAP or applicable Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(giii) enter into any Contract to do any of the foregoing;
(including a hedging or swap agreement or similar arrangementi) that would except as may be required under any Employee Benefit Plan or applicable Law or agreement, not grant to be disclosed any Business Employee any increase in Schedule 3.09 if such Contract were in place as of compensation or benefits, or adopt, enter into or amend any material Employee Benefit Plan;
(j) not make, revoke or modify any Tax election, settle or compromise any Tax liability or file any Tax Return relating to the date of this Agreement, Business in each case other than any such Contract entered into in the ordinary course of business on a basis consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated as required by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)Law;
(k) make not cancel, compromise, waive or release any material change in any method of accounting right or accounting practice of Seller or any of its Subsidiaries with respect claim relating to the Business (including or the Purchased Subsidiaries)Assets, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Lawpractice;
(ml) not (i) allow to lapse or abandon any Business Registered IP or (ii) grant any license to any Business Intellectual Property other than as required by Law or non-exclusive licenses granted in the ordinary course of business that would consistent with past practice;
(m) not materially increase settle any Action relating to the costs amend Business, the Purchased Assets or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary EmployeesAssumed Liabilities;
(n) adoptnot enter into or materially amend, approvewaive, modify or consent to the termination of any material Business Contract, or propose any change materially amend, waive, modify or consent to the termination of the Seller’s rights thereunder, except in the respective Organizational Documents ordinary course of Seller or any of the Purchased Subsidiariesbusiness;
(o) negotiate or enter into incur any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than indebtedness for borrowed money in the ordinary course respect of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesBusiness; orand
(p) not agree or commit in writing to do any of the foregoing. For Nothing contained herein shall give the avoidance of doubtPurchaser, Seller shall be permitted directly or indirectly, the right to (i) cause each Purchased Subsidiary to dividend, distribute control or otherwise pay to Seller or any of its Affiliates any or all direct the operations of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary Seller prior to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessClosing.
Appears in 1 contract
Conduct of the Business. From and after the date hereof until the Relevant Closing Date, except as set forth in on Schedule 5.01, as expressly required by applicable Law, as specifically permitted or contemplated by applicable Law this Agreement or by the other Transaction Documents, with respect as may be reasonably required to any Excluded Liability effectuate and complete the Restructurings or Excluded Asset, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Sapphire shall, and Sapphire shall cause the Sellers, Transferred Entities and, to the extent relating to the Businesses, each other Affiliate of Sapphire to, use reasonable best efforts to (x) conduct the Business Businesses in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to practice, (y) preserve intact the present business organizations and goodwill of the Business, preserve Businesses and the Transferred Entities and the present relationships of the Business Businesses with customers and customers, employees, suppliers and others having business dealings with the Businesses and the Transferred Entities and (z) maintain the properties, machinery and equipment related to the Business keep in good repair (ordinary wear and operation condition tear excepted) the material properties and assets of the Businesses and the Transferred Entities (subject provided, that, (x) the consent of Buyer shall not be required pursuant to normal wearthis Section 5.01 in respect of any COVID-19 Measures and (y) this shall not require Sapphire, the Sellers, the Transferred Entities or any of their respective Affiliates to take any action otherwise prohibited to be taken without Buyer’s consent pursuant to this Agreement), under the supervision of the trustee who shall be appointed by the EC under the EC Commitments. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Relevant Closing Date, except as set forth in on Schedule 5.01, as expressly required by applicable Law or the BCA, as specifically permitted or contemplated by the Transaction Documents this Agreement (including in respect of the Restructuring) or the other Transaction Documents, as may be required to effectuate and complete the Restructurings, in respect of any COVID-19 Measures, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), solely with respect to the BusinessBusinesses, Seller Sapphire shall not (in respect of the Business), and Sapphire shall cause the Sellers, Transferred Entities and its Subsidiaries other Affiliates not to (including any Purchased Subsidiary) not toin respect of the Business), directly or indirectly:
(a) acquire a material amount amend, modify or waive the Organizational Documents of assets from any other Person Transferred Entity, except (i) pursuant to existing Contracts for such amendments, modifications or (ii) otherwise waivers in connection with changes in the ordinary course consistent directors or officers of a Transferred Entity or to change the name of the Transferred Entities in accordance with past practice (in all material respectsSection 5.08(c);
(b) merge or consolidate any Transferred Entity with, or purchase any of the stock or all or substantially all of the assets of, or otherwise acquire the businesses of, any other Person or adopt a new plan or agreement of complete or partial liquidation, dissolution, restructuring, consolidation, recapitalization or other reorganization affecting the Businesses, except any transaction between or among wholly owned Transferred Entities;
(c) (i) authorize for issuance, issue, grant, sell, leasedeliver, license split, combine, reclassify, redeem, purchase, dispose of, pledge or otherwise encumber any of the Equity Interests or any other capital stock or equity interests of any Transferred Entity or (ii) become a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the Equity Interests or any other capital stock or equity interests of a Transferred Entity, except in the case of this clause (ii) for any transaction between or among wholly owned Transferred Entities;
(d) sell, transfer, lease or otherwise dispose of any Purchased Transferred Assets or assets of the Purchased Subsidiaries any Transferred Entity (other than Non-Business Assets), in each case, which is or are material, individually or in either casethe aggregate, any interests thereinto the Businesses, except (i) pursuant to existing Contracts, any transaction between or (ii) otherwise in the ordinary course consistent with past practiceamong wholly owned Transferred Entities;
(ce) except pursuant to Contracts in existence as of the date hereof, create or otherwise incur any Lien on any Purchased Transferred Asset or any asset Equity Interests or other capital stock, or assets, of any Purchased SubsidiaryTransferred Entity, other than Permitted Liens, Liens and fully released at or before Closing and, with respect to the Purchased SubsidiariesTransferred Entities, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Lawin accordance with the last sentence of this Section 5.01, amend declare, pay or modify set aside any dividend or other distribution (whether in cash, stock or property or any material combination thereof), in respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunderEquity Interests or any other capital stock or equity interests of a Transferred Entity, except any transaction between or among wholly owned Transferred Entities;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)policy, except for any such change as required by reason of a concurrent change in Law or GAAP;
(lh) assign, or adjust the duties or responsibilities of, any employee or worker of Sapphire or its Subsidiaries or Joint Ventures who is not an Identified Employee, such that such employee will become exclusively or primarily engaged in the Businesses (except to replace an Identified Employee whose employment has terminated prior to Closing), or remove or adjust the duties or responsibilities of, any Identified Employee, in each case, such that such Identified Employee will no longer be exclusively or primarily engaged in the Businesses;
(i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices practice: (i) increase the compensation or benefits payable to any current or former Identified Employee or independent contractor of any Transferred Entity, (ii) grant any new bonus, equity or equity-based compensation, retention, severance, termination pay or similar compensation to any such individual, (iii) enter into or amend any employment, consulting, indemnification, severance, retention, change in all material respects control, termination or as required by Law;
similar agreement with any such individual, except with respect to awards under the Emerald-Sapphire Retention Program which awards or modifications thereof are intended to encourage retention with Buyer through and beyond the Relevant Closing Date; (miv) other than provide for any discretionary payment or benefit under any Employee Plan; (v) provide for the acceleration of funding under any Assumed Employee Plan, or (vi) grant or accelerate the vesting of any incentive or benefit for any such individual, except, in each case, (A) as required by Law or the terms of any Employee Plan as in effect as of the date hereof or (B) in connection with renewals of Bargaining Agreements that are set to expire prior to the Relevant Closing Date;
(j) adopt or enter into any new Assumed Employee Plan or any other employee benefit plan, program or policy for the benefit or welfare of any current or former Identified Employee or independent contractor of the Transferred Entities or amend or modify or terminate any existing Assumed Employee Plan or any other employee benefit plan, program or policy for the benefit or welfare of any current or former Identified Employee or independent contractor of the Transferred Entities, except (i) as required by Law or the terms of any Assumed Employee Plan or any Contract in existence on the date hereof or (ii) to the extent not resulting in any material increase in cost to the Transferred Entities or Buyer, in connection with renewals of any Assumed Employee Plans (including replacement of such plans with an equivalent from a different service provider) and Bargaining Agreements;
(k) enter into or amend any Bargaining Agreement or, through negotiation or otherwise, make any binding commitment to any labor organization with respect to any Identified Employees, except (i) as required by Law or (ii) in connection with renewals of Bargaining Agreements in the ordinary course of business that would do not materially increase the aggregate costs amend by more than 3% per annum;
(l) hire, promote or terminate (other than for cause) the employment of any Identified Employee Plan whose annual base compensation exceeds, or International Plan would exceed following the hiring or adopt promotion of such individual, $250,000 per annum or enter into transfer from any plan Transferred Entity the services of any Identified Employee or arrangement transfer to any Transferred Entity any employee of Sellers or any of its Subsidiaries (other than any Identified Employee);
(m) take any action that would be considered an require (i) any Transferred Entity to provide notice under the WARN Act; or (ii) any Identified Employee Plan to receive any notice under the WARN Act;
(n) make any loans or International Plan if it were advances to, or equity investments in, any Person, except (i) intercompany loans and intercompany debt arrangements, (ii) to or in wholly-owned Transferred Entities, and (iii) advancement of trade credit to customers or expenses to employees in the ordinary course of business and consistent with past practice;
(i) permit or authorize any of the Transferred Entities to make any individual capital expenditures in excess of $100,000, except for capital expenditures (A) in the ordinary course of business or (B) pursuant to Contracts in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise (ii) fail to commit to undertake any of the foregoing make capital expenditures in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesordinary course of business consistent with past practices;
(np) adoptwith respect to the Transferred Entities, approve, consent (i) enter into any material closing agreement or similar agreement relating to Taxes (ii) request any ruling or propose any similar guidance with respect to Taxes or (iii) change in the respective Organizational Documents of Seller or any of the Purchased Subsidiariesits residence for Tax purposes;
(oi) negotiate materially modify or enter into any license of amend, renew, or terminate, or waive any material rights under, any Business Intellectual Property RightMaterial Contract, whether as licensor Permit or as licenseematerial insurance policy, other than in the ordinary course of the Business business consistent with past practice and (ii) other than in all the ordinary course of business consistent with past practice, enter into any Contract that would have been a Business Material Contract had it been entered into prior to the date of this Agreement (excluding the Transaction Documents);
(r) cancel, compromise or settle any Action related to the Businesses, except (i) in the ordinary course of business or (ii) where the amount paid in settlement or compromise is less than $5,000,000;
(s) with respect to the Transferred Entities: (i) make, change or revoke any material respectsTax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material Tax accounting method, (iv) settle or compromise any claim, notice, audit or assessment in respect of material Taxes, (v) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to a Transferred Entity, (vi) fail to pay any Taxes when it becomes due and payable except to the extent disputed in good faith in accordance with the procedures of applicable Law, or fail (vii) amend any material tax return;
(t) with respect to make the Transferred Entities, amend, restate, modify, supplement, waive, create, incur, guarantee or assume any filingIndebtedness for borrowed money, pay any feeother than Indebtedness of less than $2,000,000 in the aggregate and intercompany Indebtedness;
(i) materially amend or modify, or take terminate, any other action necessary to maintain the ownershipTransferred Real Property Lease, validity and enforceability of or enter into any material Business Patents new lease, sublease, license or Business Trademarks owned by Seller other agreement that would constitute a Material Transferred Real Property Lease, or (ii) renew any Transferred Real Property Lease other than in the ordinary course of its Subsidiariesbusiness consistent with past practice; or
(pv) agree or commit to do do, or enter into any binding Contract with respect to, any of the foregoing actions. From the Principal Closing Date through the applicable Deferred Closing, the Parties shall establish a mutually agreeable arrangement under which Buyer (or one or more of its Affiliates) would obtain the economic benefits, assume the obligations (other than performance obligations) and bear the economic burdens, associated with operating such Deferred Business prior to the applicable Deferred Closing Date (and (i) Buyer shall indemnify and hold harmless Sapphire and its Affiliates in respect of any such economic burdens, including any Liabilities from and after the Principal Closing arising out of the operations of such Deferred Business and (ii) Sapphire shall pay over to Buyer the net amount of such economic benefits accruing from and after the Principal Closing arising out of the operations of such Deferred Business); provided that, Seller and its Affiliates shall have no obligation to make any investment in, or to make any loan or other capital contribution to, such Deferred Business unless the funds therefor have been advanced by wire transfer to the applicable Seller or Affiliate by Buyer or its Affiliates; provided, further, that, Sellers shall until the applicable Deferred Closing operate each such Deferred Business on a “locked box” basis and not permit such Deferred Business to (w) dividend, distribute or otherwise pay any Cash, including through share repurchases or capital reduction arrangements in foreign jurisdictions, outside of such Deferred Business, (x) incur or pay any Transaction Expenses or incur any Indebtedness for borrowed money or (y) assume or guarantee any obligation of any third party (including Sapphire, Emerald or their respective Affiliates), or otherwise enter into any transaction or arrangement with Sapphire, Emerald or their respective Affiliates; provided, further, that, notwithstanding the foregoing. For , Sellers shall pay and be responsible for any separation or segregation costs associated with the applicable Deferred Closing (it being understood and agreed that, for the avoidance of doubtdoubt and except as otherwise provided in the Transition Services Agreement, Seller any integration costs incurred by Buyer or any of its Affiliates in respect of such Deferred Business following the applicable Deferred Closing shall be the sole responsibility of Buyer and its Affiliates). Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that prior to the Relevant Closing, nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operation of Sellers or the Transferred Entities, and prior to the Relevant Closing, Sellers and the Transferred Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations. Notwithstanding anything herein to the contrary, Sellers shall, from the date of this Agreement until the Business Day prior to the Principal Closing (or, in respect of any Cash generated by the Retained Businesses, until the Business Day prior to the Relevant Closing), be permitted to (i) cause each Purchased Subsidiary Transferred Entity to dividend, distribute or otherwise pay to Seller Sellers or any of its their Affiliates any Cash, including through share repurchases or all of the cash capital reduction arrangements in foreign jurisdictions and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary Transferred Entity to remove, and pay to Seller Sellers or any of its their Affiliates any cash and cash equivalents Cash held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessaccount.
Appears in 1 contract
Samples: Security and Asset Purchase Agreement (Willis Towers Watson PLC)
Conduct of the Business. From Except as specifically contemplated by this Agreement and the date hereof until the Closing DateAncillary Agreements, except as set forth on the Schedule 6.2 of the Disclosure Letter, and except as requested by or consented to by Purchaser in Schedule 5.01writing, as expressly contemplated by applicable Law or by from the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)date hereof through the Closing Date, Seller shall use commercially reasonable efforts to conduct (and shall cause the Subsidiaries to conduct) the Business in the ordinary course and consistent with past practice in all material respects, shall pay all accounts payable when and as due, and shall use its (and shall cause each Subsidiary to use its) commercially reasonable efforts to preserve intact the present business organizations and goodwill relationships of the Business, preserve keep available the present relationships service of the employees of the Business with customers and suppliers and maintain satisfactory relationships with the properties, machinery suppliers to and equipment related to customers of and other persons having a business relationship with the Business in good repair and operation condition (subject to normal wear)Business. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from without the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Businessof Purchaser, Seller shall not (and shall cause its Subsidiaries (including not permit any Purchased Subsidiary) not Subsidiary to:)
(a) acquire take or undertake or incur or permit to exist any of the acts, transactions, events or occurrences specified in Section 4.11 (with the understanding that the expiration of any Contract by its terms shall not constitute a material amount violation of assets from this clause (a), except that Seller shall promptly notify Purchaser of the expiration of any other Person except (i) pursuant Material Contract and promptly upon Purchaser's request, use its commercially reasonable efforts to existing Contracts renew or (ii) otherwise in the ordinary course consistent with past practice (in all material respectsextend any Material Contract);
, (b) sellenter into, leaseor commit to enter into, license any material contract or otherwise dispose of agreement, or amend any Purchased Assets or assets existing Material Contract in such a way, that will materially increase the amount of the Purchased Subsidiaries (other than Non-Business Assets), Assumed Liabilities or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create sell, transfer, dispose of, or otherwise incur agree to sell, transfer or dispose of, any Lien on any Purchased Asset assets, properties, Intellectual Property or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect rights related to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in practice. Seller shall keep intact all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place insurance existing as of the date of this Agreement, in each case other than hereof that is material to the Business until the Closing and any such Contract entered into in entitlement to the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts proceeds thereof to the extent relating to FF&E shall be contributed to the Company prior to the Closing. Seller shall cause the Business not to engage in any material respect the Business, Buyer or transaction with any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary its Affiliated Parties (other than for Pre-Closing Taxes);
(ktransactions between Seller and the Subsidiaries, transactions contemplated herein and in the Ancillary Agreements and the MTI Transaction) make any material change in any method without the prior written consent of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)Purchaser, except for any such change required by reason of a concurrent change in GAAP;
(ltransactions under existing agreements disclosed on Schedules 4.31(a) (iand 4.31(b) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing Disclosure Letter or previously disclosed in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.Seller's Form
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Micron Electronics Inc)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly required by Applicable Law, as contemplated by applicable Law or by the Transaction Documents, with respect Documents (including the Pre-Closing Reorganization and settlement of intercompany accounts to any Excluded Liability or Excluded Asset, the extent set forth in Section 5.02) or with Buyer’s prior written consent (which consent shall not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause its Subsidiaries to, use reasonable best efforts to (x) conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to Ordinary Course, (y) preserve intact the present business organizations Business and goodwill of the Business, preserve the present relationships of the Business with each of its material customers and suppliers material suppliers, and maintain (z) keep available the propertiesservices of the present Business Employees that are executives (other than due to terminations of employment or absences from employment in the Ordinary Course), machinery and equipment related provided, however, that no action by Seller or any of its Subsidiaries with respect to any of the Business in good repair and operation condition matters addressed by Sections 5.01(a) through (subject to normal wear)m) shall be deemed a breach of the foregoing unless such action would constitute a breach of such Sections. Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Datesentence, except as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly required by Applicable Law, as contemplated by the Transaction Documents (including the RestructuringPre-Closing Reorganization and settlement of intercompany accounts to the extent set forth in Section 5.02) or with Buyer’s prior written consent (which consent shall not to be unreasonably withheld, conditioned or delayed), solely with respect to the Business, Seller shall not not, and shall cause its Subsidiaries not to (including except, in each case, as expressly contemplated by any Purchased Subsidiary) not to:other clause):
(a) amend in any material respect the articles or certificate of incorporation or other organizational documents of an Acquired Entity;
(b) acquire a material amount of assets (including capital stock) from any Person (other Person than Seller or any Subsidiary of Seller) except (i) pursuant to existing Contracts contracts or commitments, (ii) otherwise in the ordinary course Ordinary Course consistent with past practice or (in all material respects)iii) assets that would constitute Excluded Assets if held by Seller or its Subsidiaries at the Closing;
(bc) sell, lease, license license, abandon or otherwise dispose of any Purchased Assets Shares, any asset that would constitute a material Purchased Asset if held by Seller at the Closing or assets any material asset of the Purchased Subsidiaries an Acquired Entity (other than Non-Business Assets), or in either case, any interests therein, Intellectual Property) except (i) pursuant to existing Contracts, contracts or commitments or (ii) otherwise sales of inventory or disposals of assets in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business AssetsOrdinary Course;
(d) (i) other than dividends or distributions payable in cash, declare, set aside or pay any dividend or other distribution with respect to the Acquired Entity Securities, (ii) issue, sell, transfer, pledge, dispose of or encumber or agree to issue, sell, transfer, pledge, dispose of or encumber (other than Permitted Liens or other Liens that would not be material to the Business, taken as a whole) any Acquired Entity Securities to any Person (other than as may be required in connection with the Pre-Closing Reorganization), (iii) split, combine or reclassify the Purchased Shares or any other outstanding Acquired Entity Securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor, or (iv) redeem, purchase or otherwise acquire, directly or indirectly, any Acquired Entity Securities, except, in the case of each of clauses (i) through (iv), as required by any Business Benefit Plan;
(e) incur any capital expendituresexpenditures in respect of the Business, except for those (i) aggregate capital expenditures contemplated by Seller’s fiscal year 2022 forecast for capital expenditures reflected in the capital expenditure budget financial model made available to Buyer prior to the date of this Agreement and Agreement, (ii) unbudgeted capital expenditures not to exceed five hundred thousand dollars ($100,000 500,000) individually or five million dollars ($1,000,000 5,000,000) in the aggregate;
aggregate or (eiii) other than amounts to be paid in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect full prior to the Business, other than Closing or reflected as a Current Liability in the ordinary course of business consistent with past practice in all material respectsClosing Net Working Capital;
(f) make any material loans or advances to any Business Employee, other than (i) in the Ordinary Course or (ii) amounts to be paid in full prior to the Closing or reflected as a Current Liability in Closing Net Working Capital;
(g) except as required by Applicable Law, amend or modify any Material Contract in any material respect way materially adverse to the Business, or voluntarily terminate any Contract listed in Schedule 3.09Material Contract, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termsOrdinary Course;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or (excluding any right relating to an asset or liability that would constitute an Excluded Asset or Excluded Liability, respectively, if held by Seller at the transactions contemplated by this AgreementClosing), except (i) in the Ordinary Course or (ii) where such settlement or compromise would not involve payments in excess of one million dollars ($1,000,000) in excess of third-party insurance that will not be paid as of the Closing or included in the calculation of the Purchase Price, in each case, that does not impose any material ongoing non-monetary obligation or limitation on the Business;
(ji) with respect to any the Business and each Acquired Entity and the Purchased SubsidiaryAssets, (i) make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, accounting or (ii) enter into any closing agreementagreement in respect of Taxes (other than Taxes included in the definition of Retained Tax Liabilities) with any Taxing Authority, settle including the settlement or compromise of any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim (other than a Tax refundclaim with respect to Retained Tax Liabilities), in each case except in the ordinary course of business consistent with past practices in all material respects or (A) if such action will is not reasonably expected to have no a material effect and adverse impact on Buyer, or (B) to the Tax Liability of extent related to the Purchased Subsidiary Seller Group;
(j) with respect to each Acquired Entity, incur any indebtedness for borrowed money other than for Pre-Closing Taxes(i) in an amount not to exceed five million dollars ($5,000,000) in the aggregate, (ii) accounts receivable factoring or (iii) pursuant to intercompany notes extended by Seller or any of its Subsidiaries);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)Business, except for any such change required by reason of a concurrent change in GAAPGAAP or Applicable Law;
(l) materially increase the compensation or benefits of any Business Employee other than (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement annual salary or other similar agreement entered into with any Business Employee wage rate or Purchased Subsidiary Employee (or any amendment to any such existing agreement)target bonus adjustments made in the Ordinary Course, (ii) other than as provided under required by Applicable Law, the Severance Plan, grant any new severance or termination pay to terms of any Business Employee Benefit Plan or any applicable collective bargaining or works council agreement in effect as of the date hereof, (iii) increase any adjustments to health and welfare plans that generally apply to employees of Seller and its Affiliates as a whole and that is made in the compensation payable Ordinary Course, or to any Business Employee, in each case one of more of Seller’s business units as a whole other than the Business, or that otherwise does not seek to target the Business or Business Employees, or (iv) for which Seller and its Affiliates (other than the Acquired Entities) shall be solely obligated to pay and as would not result in the ordinary course of business consistent with past practices in all material respects a liability to Buyer or as required by Lawan Acquired Entity;
(m) other than as required by Law assign, transfer, sell, abandon, fail to maintain, or permit to lapse any material Transferred Intellectual Property, except non-exclusive licenses granted in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;Ordinary Course; or
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For Notwithstanding the avoidance foregoing, nothing in this Section 5.01 shall restrict Seller or any of doubtits Subsidiaries, Seller shall be permitted in any respect, from taking any action to (i) cause each Purchased Subsidiary an Acquired Entity to dividend, distribute or otherwise pay to another Acquired Entity, Seller or any of its Affiliates (or another equityholder of such Acquired Entity) any or all of the cash and cash equivalents of such Purchased Subsidiary; its Cash, (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents Cash held in any bank account that is a Purchased Asset; and of an Acquired Entity or the Business, (iii) settle or otherwise terminate or eliminate intercompany balances balances, or terminate any contracts, between Seller and any Purchased Subsidiaryof its Subsidiaries, on the one hand, and Seller the Business or any Retained SubsidiaryAcquired Entity, on the other hand, and make capital increases or decreases in connection therewith, except in each case(iv) make or incur any intercompany loans among wholly owned Subsidiaries of Seller, (v) otherwise comply with or give effect to the provisions of this Agreement (including, for the avoidance of doubt, to effectuate the extent such transfer would hinder Pre- Closing Reorganization) or interfere with(vi) take (or omit to take) any action that Seller or any of its Subsidiaries determines, in its sole discretion, is reasonable in response to COVID-19 or otherwise adversely affect, the ordinary course conduct of the Businessany COVID-19 Event.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Conduct of the Business. From the date hereof of this Agreement until the Closing Date, except as set forth in Schedule 5.01Seller will, as expressly contemplated by applicable Law or by the Transaction Documentsand will cause each other Seller Entity to, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the portion of the Business consisting of the Transferred Assets and the Assumed Liabilities in the ordinary course consistent with past practice and shall practices, to use its commercially reasonable best efforts to preserve intact the present business organizations and goodwill relationships with third parties and to keep available the services of the present employees of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof of this Agreement until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer (not to which consent shall be unreasonably withheldsought from Xxxxxxx Xxxxxxx, conditioned or delayedVice President of Buyer), with respect to the BusinessSeller will not, and will cause each other Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) Entity not to:
(a) acquire a material amount make any capital expenditure, or group of assets from any related capital expenditures, relating to the portion of the Business consisting of the Transferred Assets and the Assumed Liabilities other Person except (i) pursuant to existing Contracts or (ii) otherwise than in the ordinary course of business consistent with past practice (practices and in all material respects)an aggregate amount not to exceed $12,000,000;
(b) sell, lease, license or otherwise dispose of any Purchased Transferred Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or Contracts and (ii) otherwise in the ordinary course of business consistent with past practicepractices;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset fail to maintain the books and records of any Purchased Subsidiary, other than Permitted Liens and the Business in the ordinary course of business consistent with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assetspast practices;
(d) incur enter into any capital expendituresguarantees of performance or post any performance bonds or standby letters of credit, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date in any such case guaranteeing or securing performance of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually obligations under Contracts or $1,000,000 in the aggregate;
Bids (e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the BusinessContracts or Bids which are Excluded Assets), other than in the ordinary course of business consistent with past practice in all material respectspractices;
(fe) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits for the sale of the Business thereunder;
receivables (gthe "YPF Receivable") enter into any Contract relating to the Energy Services Agreement (including a hedging or swap agreement or similar arrangementthe "YPF Agreement") that would be required to be between YPF S.A. and Xxxxxxx & Xxxxxxxxx Operations, Inc. dated November 14, 1996 disclosed in Schedule 3.09 if such Contract were in place as of writing to Buyer prior to the date of this Agreement, in each case sell or factor any accounts receivable relating primarily to the Business (other than Excluded Assets), with or without recourse;
(f) fail to maintain in good repair, subject to ordinary wear and tear, the premises, fixtures, machinery, furniture and equipment of the Business in a manner consistent with past practices;
(g) submit any Bid which, if accepted or awarded, would result in a Loss Contract;
(h) amend or modify any Contract such that it would result in a Loss Contract;
(i) take any action that would make any representation or warranty of Seller under this Agreement inaccurate in any material respect at, or as of any time prior to, the Closing Date or (ii) omit or commit to omit to take any action necessary to prevent any such Contract entered into representation or warranty from being inaccurate in any material respect at any such time;
(j) transfer or reassign any employee of Seller or any Subsidiary of Seller whose principal responsibility involves the conduct of the Business (other than transfers or reassignments (i) to the Partnership or (ii) of clerical employees in the ordinary course of business consistent with past practice in all material respects and on customary terms;business); or
(hk) enter into any contract, agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) commitment with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Transaction Agreement (Stewart & Stevenson Services Inc)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly required by applicable Law, as permitted or contemplated by applicable Law this Agreement or by the other Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause the Company and the Company Subsidiaries to conduct the Business their business, including renewing all permits and liquor licenses as they become eligible for renewal, in all material respects in the ordinary course of business consistent with past practice practice. For the Asset Management Business, Seller shall continue to operate such business in a manner to achieve the transfer as outlined in Schedule 2.09 and shall use its commercially reasonable efforts to preserve intact operate such business in a manner designed to cause the present business organizations Company and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related Company Subsidiaries not to incur any liabilities that will not be transferred prior to the Business Closing to the extent provided in good repair and operation condition (subject to normal wear)Section 2.09. Without limiting Notwithstanding the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly required by applicable Law, as permitted or contemplated by this Agreement or the other Transaction Documents (including the Restructuring) Documents, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not cause the Company and shall cause its the Company Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount amend or modify the Organizational Documents of assets from the Company or any other Person except (i) pursuant to of the Company Subsidiaries, except, with the consent of Buyer, in connection with the organization of new Subsidiaries in connection with the performance of any existing Contracts hotel management agreement or (ii) otherwise in the ordinary course consistent with past practice (in all material respects)any new hotel management agreement permitted under this Section 5.01;
(b) merge or consolidate with, or purchase all or substantially all of the stock (or other equity interests) or assets of, or otherwise acquire the business of, any other Person, except pursuant to Contracts in existence on the date hereof, as specifically identified in Schedule 5.01(b);
(c) sell, transfer, lease, license or otherwise dispose of any Purchased Assets the stock (or other equity interest) or assets of the Purchased Subsidiaries Company or any of the Company Subsidiaries, except, in the case of any sale, transfer, lease, license or disposal of assets, in the ordinary course of business that do not exceed $25,000 individually or $200,000 in the aggregate and, in each case, except pursuant to Contracts in existence on the date hereof as specifically identified in Schedule 5.01(c);
(d) issue any capital stock or other than Non-Business Assets)equity interests of, or in either casebecome a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the capital stock or other equity interests of the Company or any interests thereinof the Company Subsidiaries, except (i) pursuant to existing Contracts, Contracts in existence on the date hereof as specifically identified in Schedule 5.01(d) or (ii) otherwise for the organization, with the consent of Buyer, of new Subsidiaries in connection with the ordinary course consistent with past practice;
(c) create or otherwise incur performance of any Lien on any Purchased Asset existing hotel management agreement or any asset new hotel management agreement permitted under this Section 5.01; provided that organization of new Subsidiaries formed for purposes of employment or liquor licenses related to any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date such permitted new hotel management agreement shall not require consent of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregateBuyer;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loanschange in any method of accounting or accounting practice or policy, advances except as required by applicable Law or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectsGAAP;
(f) increase the compensation or benefits payable to any officer or director of the Company or any Company Subsidiary or grant any retention, severance or termination pay to any officer or director of the Company or any Company Subsidiary, except (i) as required by Lawapplicable Law or the terms of any Company Plan, any Severance Arrangement or any other Contract in existence on the date hereof and identified in Schedule 5.01(f) or (ii) to the extent any such compensation or benefits or retention, severance or termination pay is to be paid by Seller;
(g) hire any corporate office-level employee with an annual compensation level, including bonuses, at or above $100,000; for the avoidance of doubt, the foregoing shall not restrict the hiring of any hotel-level employee on behalf of, and at the cost of, the hotel owner;
(h) adopt or enter into any new Company Plan or amend or modify in any material respect or terminate any existing Company Plan, except as required by applicable Law or the terms of any Company Plan or any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of existence on the Business thereunderdate hereof;
(gi) enter into make any Contract loans or advances to, or equity investments in, any Person, except (including a hedging or swap agreement or similar arrangementi) that would be required pursuant to be disclosed Contracts in existence on the date hereof, as specifically identified in Schedule 3.09 if such Contract were 5.01(h) or (ii) advancement of trade credit to customers or expenses to employees or hotel owners in place as the ordinary course of business;
(j) except with respect to hotel management agreements (which are addressed in Section 5.01(k)), amend, waive any rights under, or modify in any material respect adverse to the date of this AgreementCompany or terminate any Material Contract, in each case other than any such Contract entered into except renewal in the ordinary course of business consistent with past practice in all material respects prior to the expiration of such Material Contract, provided that (i) such renewal is on terms no less favorable to the Company as the expiring Material Contract, and on customary terms(ii) such renewed contract is terminable at will by the Company or the Company Subsidiary;
(hk) enter into any new hotel operating agreement or arrangement that limits any letter of intent with respect to hotel management, or amend, waive any rights under, modify, terminate or renew any existing hotel management agreement, without the prior written consent of Buyer;
(l) make, or commit to make, any capital expenditure, except, (i) pursuant to any Contracts in existence on the date hereof, (ii) pursuant to any other Contract entered into by the Company after the date hereof with the written consent of Buyer, (iii) for capital expenditures not to exceed $50,000 individually or $200,000 in the aggregate, (iv) as may be required in an emergency context, but only up to such amount necessary to address the immediate emergency situation with the intention of minimizing or otherwise restricts mitigating the adverse consequences of the situation in relation to the Company and/or the Company Subsidiaries or (v) capital expenditures made at any individual hotel property on behalf of the applicable hotel owner, provided that all such capital expenses are reimbursable by the hotel owner;
(m) enter into any new Bargaining Agreement or amend, waive any rights under, or modify in any material respect adverse to the BusinessCompany, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Personexisting Bargaining Agreement,;
(in) settlecancel, compromise or offer settle any Action, except any settlement involving a payment of less than $150,000 plus any amount(s) subject to reimbursement from any insurance provider or propose to settleapplicable hotel owner, any material Action involving provided that the Business settlement is for monetary consideration only with no admission of liability and is in full and final settlement and with no restriction on the future operations of the business of the Company and the Company Subsidiaries. For the avoidance of doubt, the undertaking in a settlement agreement of customary obligations such as a non-disparagement or relating similar employment-related covenants that are immaterial to the transactions contemplated by this Agreementoperation of the business of the Company and the Company Subsidiaries shall not be deemed to be a restriction on the future operations of the business of the Company and the Company Subsidiaries;
(jo) with respect to any Purchased Subsidiary, (i) make or change any Tax election, change any annual Tax accounting period, (ii) adopt or change any method of Tax accounting, enter into any closing agreement, (iii) compromise or settle any Tax claim, audit Liability or assessment, or take (iv) amend any affirmative action to surrender any right to claim a Tax refundReturn, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will would not have no a material adverse effect on the Tax Liability of Buyer, the Purchased Company or any Company Subsidiary (other than for Pre-Closing Taxes)following the Closing;
(kp) make any material change except as expressly contemplated in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)Schedule 2.09, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement new renovation services or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (development services agreements or any amendment other Contract requiring the Company and the Company Subsidiaries to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay perform services similar to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as those required by Law;
(m) other than as required by Law or the Contracts set forth in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesSchedule 5.01(j); or
(pq) agree or commit to do any of the foregoing. For the avoidance of doubt, prior to Closing, Seller shall be permitted to (iA) cause each Purchased Subsidiary of the Company and the Company Subsidiaries to dividend, distribute or otherwise pay to Seller Seller, any of its Affiliates or any of its Affiliates direct or indirect equity holders any or all of the cash and cash equivalents Cash (other than Restricted Cash) of such Purchased Subsidiary; Person and (iiB) remove, or cause any Subsidiary the Company and the Company Subsidiaries to remove, and pay to Seller Seller, any of its Affiliates or any of its Affiliates direct or indirect equity holders any cash and cash equivalents Cash (other than Restricted Cash) held in any bank account that is a Purchased Asset; account, and (iiiC) settle intercompany balances between cause the Company and the Company Subsidiaries to take any Purchased Subsidiary, on of the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases actions described in connection therewith, except in each case, clauses (a) through (p) above to the extent such transfer would hinder related to the conduct of the Asset Management Business. Without in any way limiting any Party’s rights or interfere withobligations under this Agreement, the Parties understand and agree that prior to Closing nothing contained in this Agreement shall give Buyer, directly or otherwise adversely affectindirectly, the right to control or direct the operation of the Company and the Company Subsidiaries, and prior to Closing, Seller, the Company and the Company Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations. Prior to Closing, Seller shall cause the Company and the Company Subsidiaries to pursue extensions of contracts, letters of intent and ongoing pursuit and negotiation of new hotel management agreement opportunities in the ordinary course conduct of business, including those extensions, letters of intent and new hotel management agreement opportunities as of the Businessdate hereof as set forth on Schedule 5.01, subject to the limitations of this Section 5.01 requiring consent of Buyer to execute such agreements. Seller will provide information to Purchaser at Purchaser’s written request with regard to the progress of such matters.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Intercontinental Hotels Group PLC /New/)
Conduct of the Business. (a) From the date hereof until the Closing Date, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to conduct its business and the business of its Subsidiaries in the ordinary course of business consistent with past practices, keep available the services of its present sales and management employees and preserve its present relationships and goodwill with customers, suppliers and other Persons having material business relations therewith, 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) except as set forth in Section 7.12, the Company and its Subsidiaries may use all available cash to repay any Indebtedness or to make cash distributions prior to the opening of business on the Closing Date 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 (3) the Company and its Subsidiaries’ failure to take any action prohibited by Section 7.01(b) (after taking into account the carve outs 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 Date, except (v) as set forth on the Conduct of Business Schedule, (w) as otherwise explicitly permitted by this Agreement, (x) as consented to in Schedule 5.01, as expressly contemplated by applicable Law or writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (will not to be unreasonably withheld, conditioned or delayed), Seller shall conduct and (y) as required by Law to be implemented during the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from period between the date hereof until and the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Company shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant authorize, issue, sell or deliver any units, shares or other Ownership Interests of the Company or any of its Subsidiaries, or authorize, issue, sell or deliver any securities convertible into, or options with respect to, or warrants to existing Contracts purchase or rights to subscribe for, any units, shares or other Ownership Interests of the Company or any of its Subsidiaries;
(ii) otherwise increase, or make any commitment to increase, the compensation, incentive arrangements, or other benefits to any officer, director, employee or Service Provider of the Company or any of its Subsidiaries, other than immaterial increases in the ordinary course of business consistent with past practice practices for non-executive employees with annual compensation of less than $200,000 (except for increases in all material respects);
(b) selloverall compensation due to achieving higher sales commissions, lease, license but not increases or otherwise dispose of changes in any Purchased Assets commission or assets incentive compensation target amounts with respect to services performed on behalf of the Purchased Company and its Subsidiaries (other than Non-Business Assets)increases in incentive compensation, or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course of business and consistent with past practices, provided to all sales representatives of Seller and its Subsidiaries in the same manner and without treating any of the Specified Employees differently than any other sales representatives of Seller and its Subsidiaries)) and for increases in number of hours provided;
(iii) establish, adopt, amend, terminate or materially increase the compensation, severance or other benefits under any Plans except as required pursuant to the terms of the Plans or other agreement existing as of the date hereof, or for Seller Plans in the ordinary course of business;
(iv) hire, or make an offer to hire, any new employee of the Company or any of its Subsidiaries with a base salary in excess of $150,000 or terminate any officer or other employee of the Company or any of its Subsidiaries with a base salary in excess of $150,000 for any reason other than cause;
(A) other than the payment of accrued and unpaid cash bonuses or other cash incentive compensation in the ordinary course of business, pay, or make any commitment to pay, any bonus or make any profit-sharing payment, cash incentive payment or similar payment, (B) fund, or make any commitment to fund, any compensation obligation (whether by grantor trust or otherwise) or (C) take any action to accelerate any payment or benefit or the funding of any payment or benefit, payable or to be provided to any of its directors, officers, employees, or Service Providers, in each case, other than as specifically required pursuant to the terms of the Plans in effect as of the date hereof;
(vi) (A) implement any reduction in force of any group of employees of the Company or any of its Subsidiaries, (B) enter into any collective bargaining agreement or recognize any Person as the collective bargaining representative of any employees of the Company or any of its Subsidiaries or (C) agree to pay any pension, retirement allowance, termination, or severance pay or other employee benefit, other than, in the case of this clause (C), providing severance to terminated employees consistent with past practices in the ordinary course of business (but, for the avoidance of doubt, not entering into agreements containing any severance obligations).
(vii) authorize or effect any recapitalization, reclassification, equity split or like change in its or any of its Subsidiaries’ capitalization;
(viii) merge with or into, or consolidate with, any other Person;
(ix) authorize or effect any liquidation or other dissolution;
(x) amend its or its Subsidiaries’ Organizational Documents;
(xi) issue, declare, accrue, set aside, deliver, pledge, encumber, sell, or dispose, or pay any dividend or make any other distribution in respect of, any units, shares or other Ownership Interests of the Company or any of its Subsidiaries, or make any redemption of, purchase or otherwise acquire any units, shares or other Ownership Interests of the Company or any of its Subsidiaries;
(xii) reduce the amount of any insurance coverage provided by the insurance policies set forth on the Insurance Schedule with respect to the assets, operations and activities of the Company and its Subsidiaries as are in effect as of the date of this Agreement that would reasonably be expected to have an adverse effect on the business of the Company or any of its Subsidiaries in any material respect;
(xiii) (A) make any loan, advance or capital contribution to or investment in any Person, other than (x) routine travel and business expense advances to current employees of the Company or any of its Subsidiaries, in each case, in the ordinary course of business consistent with past practices, and (y) payment arrangements with customers in the ordinary course of business consistent with past practices pursuant to which customers make installment payments for services rendered by the Company or any of its Subsidiaries over a period of time; or (B) incur or guarantee any Indebtedness for borrowed money or any other Indebtedness outside of the ordinary course of business in excess of $200,000 in the aggregate;
(xiv) make any mortgage or pledge of any of its material assets or any material portion of the assets or otherwise permit any of its material assets or material portion of the assets to become subject to any Lien, except for Permitted Liens and pledges of immaterial assets made in the ordinary course of business and consistent with the past practices;
(xv) sell, assign, transfer, license on an exclusive basis or lease any of its material tangible assets or any material portion of its tangible assets, except, in the ordinary course of business or pursuant to any agreement set forth on the Contracts Schedule;
(xvi) sell, assign, license (except in the ordinary course of business consistent with past practices) or transfer, mortgage, pledge or subject to any Lien, or abandon, permit to lapse or otherwise dispose of, any of Intellectual Property rights;
(xvii) (A) 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 assets of or otherwise) any business or any corporation, partnership, association or other business organization or division thereof or any other Person, or (B) acquire any material assets, other than, in the case of this clause (B), the acquisition of assets in the ordinary course of business consistent with past practice;
(cxviii) create make any capital expenditures in excess of $250,000 in the aggregate or otherwise incur any Lien on any Purchased Asset commitments therefor, except for such capital expenditures or any asset of any Purchased Subsidiary, other than Permitted Liens and commitments therefor that are (i) fully paid for in their entirety with respect cash prior to the Purchased opening of business on the Closing Date in connection with an emergency or (ii) reflected in the Company’s or its Subsidiaries’ current budget, Liens with respect the portion of which related to capital expenditures and commitments as set forth in Section (b)(xviii) of the Non-Conduct of Business AssetsSchedule;
(dxix) incur commence or settle or compromise any capital expendituresclaim, action, arbitration or other Proceeding, except for those contemplated settlements that do not impose any Liability or obligation on the Company or any of its Subsidiaries other than cash payments that are paid by the capital expenditure budget made available to Buyer Company prior to the date of this Agreement Closing Date and unbudgeted capital expenditures do not to exceed $100,000 individually or $1,000,000 250,000 in the aggregate;
(exx) except as required by GAAP, (A) materially change any of its accounting principles, methods or practices (including principles, methods and practices relating to the estimation of reserves and other than in connection with actions permitted by Section 5.01(aliabilities) or Section 5.01(d)(B) write up, make write down or write off the book value of any loans, advances or capital contributions to, or investments in, any other Person material asset;
(xxi) to the extent solely applicable to the Company and its Subsidiaries and not with respect to the BusinessSeller Group, (1) change any annual Tax accounting period or method of Tax accounting, (2) enter into any closing agreement with a taxing authority, (3) settle any material Tax claim, audit or assessment with a taxing authority, (4) make any material Tax election or prepare any material Tax Return in each case in a manner that is materially inconsistent with the past practices of the Company or its Subsidiaries with respect to the treatment of items on prior Tax Returns, (5) incur any material liability for Taxes other than in the ordinary course of business consistent with past practice practice, (6) file any past-due Tax Return or file any Tax Return in all material respectseach case in a jurisdiction where the Company or its Subsidiaries did not file a Tax Return of the same type in the immediately preceding Tax period or (7) file a claim for refund of Taxes with respect to the income, operations or property of the Company and its Subsidiaries;
(fxxii) enter into any transaction, agreement or arrangement with the Company or any of its Subsidiaries, on the one hand, and any Related Person, on the other hand, except (A) for payments of cash bonuses or pursuant to any agreement set forth on the Contracts Schedule or the Affiliated Transactions Schedule, (B) as required otherwise permitted by LawSections 7.01(b)(ii), (iii), (iv), (v), (vi) or (xiii), or (C) as contemplated by the Transition Services Agreement or Section 7.09;
(xxiii) purchase, sell or transfer, or enter into any agreement to purchase, sell or transfer any Owned Real Property;
(xxiv) amend or modify in any material respect respect, transfer or terminate terminate, in whole or in part, or grant any release, waiver or relinquishment of any material right under, any Lease or any Contract listed in set forth or required to be set forth on the Contracts Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in set forth on the Contracts Schedule 3.09 if such Contract were in place as of entered into prior to the date of this Agreementhereof, in each case or enter into any new Lease or Contract that would be required to be set forth on the Contracts Schedule if entered into prior to the date hereof, other than any such Contract entered into (A) in the case of Material Contracts described in Sections 4.10(a)(viii), (x), (xv) and (xvi), in the ordinary course of business consistent with past practice practices, (B) the termination of a Contract upon the expiration of such Contract in all material respects and on customary termsaccordance with its terms or (C) as contemplated by the Transition Services Agreement or Section 7.09;
(hxxv) enter into implement any agreement or arrangement employee layoffs that limits or otherwise restricts in any material respect would implicate the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any PersonWARN Act;
(ixxvi) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of manage its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case working capital other than in the ordinary course of business consistent with past practices in all material respects (including (i) not deferring, delaying or as required by Law;
(m) other than as required by Law or in postponing the ordinary course payment of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union accounts payable or other labor organization as the bargaining representative for any Business Employees Liabilities or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, obligations other than in the ordinary course of the Business business consistent with past practice practices, and (ii) not accelerating the collection of accounts receivable other than in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability ordinary course of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesbusiness consistent with past practices); or
(pxxvii) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Conduct of the Business. From During the period from the date hereof of this Agreement and continuing until the Closing Dateearlier of the termination of this Agreement or the Effective Time, the Company agrees to conduct the businesses of the Company, except to the extent that Parent shall otherwise consent in writing, in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due (subject to Parent’s review and consent to the filing of any Tax Return, as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayedSection 5.7(e) below), Seller shall conduct to pay or perform other obligations when due, and, to the Business in the ordinary course extent consistent with past practice and shall use its commercially reasonable efforts such business, to preserve intact the present business organizations and goodwill of the BusinessCompany, keep available the services of the present employees of the Company and to use its best efforts to preserve the present relationships of the Business Company with customers franchisees, customers, suppliers, distributors, licensors, licensees, and suppliers others having business dealings with them, all with the goal of preserving unimpaired the goodwill and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality ongoing businesses of the foregoing Company at the Effective Time. The Company shall promptly notify Parent of any event, occurrence or emergency not in the ordinary course of business of the Company and subject to applicable Law, any material event involving the Company that arises during the period from the date hereof of this Agreement and continuing until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by earlier of the Transaction Documents (including termination date of this Agreement or the Restructuring) or with Buyer’s Effective Time. The Company shall not without the prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toof Parent:
(a) acquire a material amount cause or permit any modifications, amendments or changes to the Organizational Documents of assets from the Company;
(b) enter into, modify, amend, or change any Franchise Agreement or FDD;
(c) undertake any expenditure, transaction or commitment exceeding $10,000 individually or $25,000 in the aggregate or any commitment or transaction that would limit the right of the Company to engage in any line of business or compete with any Person or operate in any location;
(d) pay, discharge, waive or satisfy any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other Person except (i) pursuant to existing Contracts than the payment, discharge or (ii) otherwise satisfaction in the ordinary course consistent with past practice (of business of liabilities reflected or reserved against in all material respects)the Balance Sheet;
(be) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAP;
(f) make or change any Tax election, adopt or change any Tax accounting method, enter into any Tax agreement, settle any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment or file any Tax Return unless a copy of such Tax Return has been delivered to Parent for review a reasonable time prior to filing and Parent has approved such Tax Return;
(g) revalue any of its assets (whether tangible or intangible), including writing off notes or accounts receivable;
(h) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any Shares, or split, combine or reclassify any Shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any Shares, or directly or indirectly repurchase, redeem or otherwise acquire any Shares;
(i) increase or otherwise change the salary or other compensation payable or to become payable to any officer, director, employee, consultant or advisor, or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or other property) of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such person;
(j) grant any severance, change of control or termination pay (whether payable in cash, equity or otherwise) to any current or former employee, consultant or director 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;
(k) sell, lease, license or otherwise dispose of or grant any Purchased Assets security interest in any of its properties or assets assets, including the sale of any accounts receivable of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practiceCompany;
(cl) create make any loan to any Person or otherwise incur any Lien on any Purchased Asset or any asset purchase debt securities of any Purchased Subsidiary, other than Permitted Liens and with respect to Person or amend the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur terms of any capital expendituresoutstanding loan agreement, except for those contemplated by the capital expenditure budget made available advances to Buyer prior to the date of this Agreement employees for travel and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than business expenses in the ordinary course of business consistent with past practice in all material respectspractices;
(fm) except as required by Lawincur any Indebtedness, amend guarantee any Indebtedness of any Person, issue or modify in sell any material respect or terminate any Contract listed in Schedule 3.09debt securities, or otherwise guarantee any debt securities of any Person;
(n) waive or release any material rights, claims right or benefits claim of the Business thereunderCompany, including any write-off or other compromise of any account receivable of the Company;
(go) commence or settle any Action by or against the Company or relating to its business, properties or assets;
(p) issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Common Stock or other Equity Interests;
(q) (i) sell, lease, license or transfer to any Person any rights to any Intellectual Property or enter into any Contract (including a hedging or swap agreement or similar arrangementmodify or amend any existing agreement with respect to any Intellectual Property with any Person or with respect to any Intellectual Property of any Person, (ii) that would be required purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to be disclosed in Schedule 3.09 if such Contract were in place as the Intellectual Property of the date of this Agreementany Person, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
or (hiii) enter into any agreement or arrangement that limits modify or otherwise restricts in amend any material existing agreement with respect to the Business, Buyer or development of any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or Intellectual Property with any Persona third party;
(ir) settleenter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) other occupancy agreement with respect to any Purchased Subsidiaryreal property or alter, make amend, modify or change terminate any Tax electionof the terms of any Real Property Lease, change or waive any annual Tax accounting periodterm or condition thereof or grant any consents thereunder;
(s) terminate, adopt amend or change otherwise modify (or agree to do so), or violate the terms of, any method of Tax accountingthe Contracts set forth or described in the Company Disclosure Schedule;
(t) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material or any equity securities, individually or in the aggregate, to the business of the Company;
(u) adopt, amend or terminate any agreement with any current or former employee, consultant or director, employee benefit plan, policy or arrangement, or employee stock purchase or stock option plan, or enter into any closing employment contract or collective bargaining agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (iv) enter into any Bargaining Agreementstrategic alliance, employment, deferred compensation, severance, retirement affiliate agreement or other similar agreement entered into with any Business Employee joint marketing arrangement or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(mw) other than as required by Law promote, demote, terminate or in otherwise change the ordinary course employment status or titles of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter intoemployee;
(x) cancel, amend or extend renew any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesinsurance policy; or
(py) take, commit, or agree in writing or commit otherwise to do take, any of the foregoing. For actions described in this Section 5.7, or any other action that would (A) prevent the avoidance of doubtCompany from performing, Seller shall be permitted or cause the Company not to perform, its covenants or agreements hereunder or (iB) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or result in any of its Affiliates any respective representations and warranties contained herein being untrue or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessincorrect.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the First Closing Date, each of the Companies shall use its commercially reasonable efforts to carry on the Business in the ordinary course of business and substantially in the same manner as currently conducted.
(b) From the date hereof until the First Closing Date, except as set forth in Schedule 5.01, as expressly contemplated otherwise provided for by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetthis Agreement, or with Buyer’s prior written consented to in writing by Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill ) neither of the BusinessCompanies shall take any action which, preserve the present relationships of the Business with customers if taken after January 1, 2013 and suppliers and maintain the properties, machinery and equipment related prior to the Business in good repair and operation condition date hereof, would have been required to be disclosed on Schedule 4.2(h) (subject other than with respect to normal wearsubsection (xv) thereof). Without limiting the generality of the foregoing and subject to applicable Law, from .
(c) From the date hereof until the First Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by neither of the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not Companies shall fail to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
; (cii) create or otherwise incur any Lien on any Purchased Asset or any asset timely pay all material Taxes due and payable; and (iii) promptly notify Buyer of any Purchased Subsidiarymaterial income, franchise or similar (or other than Permitted Liens and material) Tax claim, investigation or audit pending against or with respect to either of the Purchased SubsidiariesCompanies in respect of any material Tax matters, Liens with respect including material Tax Liabilities and material Tax refund claims. From the date hereof until the First Closing Date, neither of the Companies shall cause either of the Companies to the Non-Business Assets;be treated as an association taxable as a corporation for Tax purposes.
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to From the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in hereof until the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to date immediately following the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits last day of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as 2013 Festival, neither of the date Companies shall (without the consent of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement Parent or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates Affiliates, which consent may be withheld or delayed in their sole discretion) distribute or dividend any cash to either of the Sellers, except for distributions or dividends to allow each of the Sellers to pay taxes, including estimated taxes, in respect of income of the applicable Company. From the date immediately following the last day of the 2013 Festival, so long as the Companies and the Sellers have satisfied the condition set forth in Section 8.1(c), the Companies shall have the right to distribute or dividend any cash to either of the Sellers, except for distributions or dividends that would reasonably be expected to result in the Net Working Capital of either of the Companies to be less than $0.
(including e) From the Purchased Subsidiaries after date hereof until the First Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability neither of the Purchased Subsidiary Companies shall (other than for Pre-Closing Taxes);
(k) make any material change in any method without the consent of accounting Parent or accounting practice of Seller Buyer or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)their respective Affiliates, except for any such change required by reason of a concurrent change which consent may be withheld or delayed in GAAP;
(l) (itheir sole discretion) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment Contract related to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licenseeticketing, other than in ticketing arrangements for 2013 events, which shall be at the ordinary course sole discretion of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain Sellers and the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.Companies;
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SFX Entertainment, INC)
Conduct of the Business. From and after the date hereof until the Closing Date, and unless the Buyer shall otherwise consent or agree in writing, the Seller and the Parent covenant that:
(a) Except as contemplated by this Agreement or required by the Bankruptcy Code or order of the Court, the Seller shall not make any material change in the physical condition of any Store located on Owned Real Property, except as set forth in on Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents5.1(a), with respect regard to any Excluded Liability or Excluded Assetongoing renovation and remodeling efforts at the Stores located on Owned Real Property and normal maintenance and repairs of the Stores located on Owned Real Property, or with Buyer’s prior written consent (not to be unreasonably withheldincluding, conditioned or delayed)without limitation, the installation of elevators at such Stores, and the Seller shall conduct the Business and maintain the Purchased Assets in the ordinary course consistent with past practice the Seller's status and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill practices as a debtor-in-possession under Chapter 11 of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition Bankruptcy Code.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Dateforegoing, except as set forth in Schedule 5.01, as expressly contemplated by this Agreement, the Transaction Documents Seller shall: (including i) conduct the Restructuring) or Business in accordance with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), the Seller's recent retail practices with respect to the Businessreceipt of goods, Seller shall not the distribution, pricing, sale and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount promotion of assets from any goods and the taking of permanent and temporary markdowns to insure proper aging and other Person except (i) pursuant to existing Contracts or customary inventory management practices; (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant use commercially reasonable efforts to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens preserve and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice maintain in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after Assets and existing relationships with suppliers, customers and others doing business with the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased AssetSeller; and (iii) settle intercompany balances between promptly notify the Buyer in writing of any material damage to the Purchased Subsidiary, on Assets of which the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere withParent has knowledge, or any fact, circumstance or occurrence which the Seller reasonably believes to have a Material Adverse Effect or would render any of the Seller's representations or warranties inaccurate in any material respect.
(c) Except as otherwise adversely affectcontemplated by this Agreement or required by order of the Court, the ordinary course conduct Seller and the Parent shall not: (i) mortgage, pledge or subject the Purchased Assets to any Lien other than Permitted Liens; (ii) enter into, adopt or amend (except as required by law or by any agreement listed in Schedule 3.10 hereto) any Benefit Plan or increase the amount or accelerate the payment or vesting of any benefit payable thereunder; (iii) cancel, terminate, assign or amend any Assumed Contract; (iv) close any Stores to be purchased by the Buyer; (v) purchase inventory or supplies for the Stores other than in accordance with the Seller's past practices following the Petition Date; or (vi) transfer or sell any Equipment from the Stores.
(d) Except as otherwise permitted by the terms of this Agreement, the Seller shall not permit or take any action that would be expected to and does result in any of the Businessrepresentations and warranties in Article III becoming untrue or incorrect in any material respect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Levitz Furniture Corp /Fl/)
Conduct of the Business. From the date hereof Original Date until the earlier of the Closing DateDate and the date this Agreement is terminated in accordance with its terms, except as set forth in Schedule 5.01Section 5.01 of the Seller Disclosure Schedule, as expressly contemplated required by applicable Law or as required by this Agreement, as may be required to complete the Transaction Documents, with respect to any Excluded Liability or Excluded AssetReorganization, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause its Subsidiaries to, (i) conduct the Business in all material respects in the ordinary course consistent with past practice, and (ii) use commercially reasonable efforts to (A) preserve the Business substantially intact, and (B) maintain and preserve the assets, properties and material business relationships (including with employees) of the Business. Without limiting the generality of the foregoing, from the Original Date until the earlier of the Closing Date and the date this Agreement is terminated in accordance with its terms, except as set forth in Section 5.01 of the Seller Disclosure Schedule, as required by applicable Law or as required by this Agreement, as may be required to complete the Reorganization, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice not, and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill not permit any of the BusinessTransferred Entities, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related JV Entities (as limited by Seller’s express rights to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayedexercise control over such JV Entity), the Equity Sellers, the XX Xxxxxxx, or the Asset Sellers, in each case solely with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not Business to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts amend or (ii) otherwise in modify the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose Organizational Documents of any Purchased Assets Transferred Entity or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expendituresJV Entity, except for those contemplated by the capital expenditure budget made available to Buyer prior routine amendments to the date Organizational Documents of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually any such Transferred Entity or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than JV Entity in the ordinary course of business consistent with past practice which are not reasonably expected to result in all any material respectsadverse impact to Buyer, any Buyer Designee, any Transferred Entity or any JV Entity;
(fb) except as required by Lawacquire or sell, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09assign, transfer, lease, license, pledge, or otherwise waive or release dispose of any material rightsOwned Real Property, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into leases and pledges in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hc) enter into any agreement acquire or arrangement that limits sell, assign, transfer, lease, license, pledge, or otherwise restricts in any material respect the Business, Buyer or any dispose of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settleany Transferred Assets in excess of $1,000,000 individually or $5,000,000 in the aggregate or (ii) any Leased Real Property (whether by merger, consolidation, acquisition of stock or offer assets, license or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(jotherwise) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refundexcept, in each case except case, (A) as required by Material Contracts in existence on the Original Date, (B) any transaction among wholly owned Transferred Entities, or (C) in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)practice;
(kd) sell, transfer, pledge or otherwise dispose of any Transferred Interests or JV Interests;
(e) propose or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Transferred Entity or JV Entity or file a petition in bankruptcy or consent to the filing of any bankruptcy petition under any applicable Law;
(f) enter into any agreement with respect to the capital stock or Equity Interests of any Transferred Entity or JV Entity;
(g) issue, deliver, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any capital stock or other Equity Interests of, or become a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the capital stock or other Equity Interests of, a Transferred Entity or JV Entity, except in connection with (i) any transaction among wholly owned Transferred Entities, or (iii) the formation of Subsidiaries in the ordinary course of business consistent with past practice;
(h) reclassify, adjust, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock or other Equity Interests, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other Equity Interests of any Transferred Entity or JV Entity;
(i) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries policy used with respect to the Business (including the Purchased Subsidiaries)Business, except for any such change as required by reason of applicable Law or GAAP or recommended by Seller’s independent auditors with respect to Seller and its Subsidiaries as a concurrent change in GAAPwhole;
(lj) (i) enter into increase, in any Bargaining Agreementmaterial respect, employment, deferred compensation, severance, retirement the compensation or other similar agreement entered into with benefits payable to any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)Employee, (ii) other than as provided under the Severance Plan, grant any new retention, equity, bonus, severance or termination pay to any Business Employee Employee, or (iii) increase the compensation payable to enter into or amend any employment, consulting, indemnification, severance, change in control, retention or termination agreement with any Business Employee, except in each case other than (A) in the ordinary course of business consistent with past practices practice, (B) as reflected in all material respects the budget or financial forecast previously provided to Buyer, (C) as required by Lawapplicable Law or the terms of any Plan, or any Contract in existence on the Original Date, (D) in connection with renewals of Bargaining Agreements that do not increase aggregate costs by more than 5%, or (E) as specifically contemplated in this Agreement, or (F) if any and all associated Liabilities are retained by Seller;
(mk) other than as required by Law adopt or enter into any new Plan or amend or modify in any material respect or terminate any existing Plan, except (i) in the ordinary course of business that would not materially increase consistent with past practice, (ii) as reflected in the costs amend budget or terminate financial forecast previously provided to Buyer, (iii) as required by applicable Law or the terms of any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were Contract in existence on the date hereof or materially Original Date, (iv) in connection with renewals of Bargaining Agreements that do not increase the benefits provided under any Employee Plan or International Planaggregate costs by more than 5% per year, (v) as specifically contemplated in this Agreement, or promise to commit to undertake (vi) if any of the foregoing in the future and all associated Liabilities are retained by Seller;
(l) enter into or enter into, amend or extend any Bargaining Agreement or, through negotiation or recognize otherwise, make any union or other binding commitment to any labor organization with respect to the Business Employees, except (i) in the ordinary course of business consistent with past practice, (ii) as required by applicable Law, or (iii) in connection with renewals of Bargaining Agreements that do not increase aggregate costs by more than 5%;
(m) make any loan, advancement or investment in any Person, except (i) advances to employees in the bargaining representative for ordinary course of business consistent with past practice, (ii) in accordance with the terms of Material Contracts in existence on the Original Date or that are entered into after the Original Date in the ordinary course of business consistent with past practice, (iii) any Business Employees transaction among wholly owned Transferred Entities, (iv) any transaction involving less than $10,000,000, or Purchased Subsidiary Employees(v) otherwise in the ordinary course of business consistent with past practice;
(n) adopt, approve, consent to authorize new individual capital expenditures in excess of $5,000,000 individually or propose any change $10,000,000 in the respective Organizational Documents aggregate, in each case solely to the extent any Transferred Entity or JV Entity would be responsible for the payment thereof after the Closing or which would otherwise constitute an Assumed Liability at the Closing, except for capital expenditures (i) required pursuant to the terms of Seller Material Contracts in existence on the Original Date, or any of (ii) reflected in the Purchased Subsidiariesbudget or financial forecast previously provided to Buyer;
(o) negotiate or enter into any license of Contract that, if existing on the Original Date would be a Material Contract, amend or modify in any material respect adverse to the Business Intellectual Property Rightor terminate any Material Contract, whether as licensor or as licenseecancel, other than modify, amend, release, assign or waive any material rights or claims under any Material Contract, except (i) in the ordinary course of business consistent with past practice, or (ii) termination due to uncured breach by the Business counterparty under such Material Contract;
(p) cancel, compromise or settle any material Action for which any Transferred Entity or JV Entity would have any Liability after the Closing or which would otherwise constitute an Assumed Liability at the Closing, other than compromises, settlements or agreements (i) in the ordinary course of business consistent with past practice that involve only the payment or receipt of monetary damages that (A) are reserved against in all material respectsthe determination of Net Working Capital, or fail (B) are fully paid prior to make the Closing or (C) any filingsettlement or compromise involving, pay when aggregated with any feeother settlements or compromises during such period which are not permitted by clause (A) or (B) above, a payment of less than $5,000,000 in the aggregate, in any case without the imposition of equitable relief on, or take the admission of wrongdoing by, any other action necessary to maintain the ownershipTransferred Entity, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller JV Entity or any of its Subsidiariestheir respective directors, officers, employees or agents;
(q) solely with respect to the Transferred Entities, the JV Entities, the Business or the Transferred Assets, (i) make or change any material Tax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material method of Tax accounting, (iv) compromise or settle any material Tax Liability, (v) amend any material Tax Return, or (vi) surrender any right to claim a refund of material Taxes, in each case, except in the ordinary course of business consistent with past practice; or
(pr) agree or commit to do any of the foregoing. For Notwithstanding any provision herein to the avoidance of doubtcontrary, prior to Closing, Seller shall be permitted to, or cause its Subsidiaries to (iA) cause each Purchased Subsidiary Transferred Entity and JV Entity to dividend, distribute or otherwise pay to Seller or any of its Affiliates Subsidiaries any or all of the cash and cash equivalents Cash of such Purchased Subsidiary; Transferred Entity or JV Entity prior to 11:59 p.m. local time on the Closing Date in the applicable jurisdiction, including through share repurchases or capital reduction arrangements in foreign jurisdictions, (iiB) removetake any action with respect to any Retained Asset or Retained Liability or the Retained Businesses, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iiiC) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, Intercompany Balances and make capital increases in connection therewith, except and (D) enter into Contracts in each caseconnection with any of the foregoing. Notwithstanding anything else contained in this Section 5.01, Seller and its Subsidiaries may take commercially reasonable actions that would otherwise be prohibited by this Section 5.01 to the extent such transfer would hinder or interfere withnecessary to prevent the occurrence of, or otherwise adversely affectmitigate the existence of, emergency situations or address immediate risks of human health or damage to the environment, material equipment or other material assets of Seller or any of its Subsidiaries, so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course conduct of business. Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that prior to Closing nothing contained in this Agreement shall give Buyer or any of its Subsidiaries, directly or indirectly, the right to control or direct the operation of the Business, and prior to the Closing, Seller and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Conduct of the Business. From the date hereof until the Closing Date, except (a) Except as expressly contemplated by this Agreement (including as set forth in Schedule 5.01Section 6.02(a) of the Seller Disclosure Schedules and the implementation of the SaleCo Reorganization), as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed; provided that Xxxxx’s consent shall be deemed given if Buyer has not responded within five Business Days after the date of receipt of Seller’s request for 44 consent) or as required by applicable Law, from the Execution Date until the earlier of the Closing and the termination of this Agreement, as applicable (the “Interim Period”), Seller shall cause each Acquired Company to conduct the Business its business in all material respects in the ordinary course consistent with past practice of business. In addition (and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without without limiting the generality of the foregoing and subject foregoing), (x) Seller shall use commercially reasonable efforts to applicable Law, from the date hereof until issue prior to the Closing Date, Date all SRECs minted prior to the Closing Date by the Acquired Companies (other than minted SRECs unable to be delivered under the terms of existing Contracts) and transfer all such SRECs out of the Acquired Companies and (y) except as expressly contemplated by this Agreement (including as set forth in Schedule 5.01Section 6.02(a) of the Seller Disclosure Schedules), as expressly contemplated consented to in writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed); provided that Buyer’s consent shall be deemed given if Buyer has not responded within five Business Days after the date of receipt of Seller’s request for consent) or as required by applicable Law, Seller shall not, with respect to the BusinessAcquired Companies, Seller shall not and shall cause its Subsidiaries (including the Acquired Companies not to take, any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except the following actions during the Interim Period: (i) pursuant to existing Contracts or (ii) otherwise in amend the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose Organizational Documents of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify Acquired Company in any material respect (other than to implement the SaleCo Reorganization); (ii) effect any recapitalization, reorganization, merger, liquidation, dissolution or terminate winding up of any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
Acquired Company (g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into reorganization solely among Acquired Companies and the SaleCo Reorganization); (iii) declare, make or pay any dividend or other distribution in respect of the ordinary course Company Interests to Seller, other than any dividend or other distribution of business consistent with past practice in cash or cash equivalents declared, made or paid prior to the Closing (it being understood and agreed that Seller shall use commercially reasonable efforts to cause to be distributed from the Acquired Companies all material respects and on customary terms;
cash distributable to Seller prior to the Closing without the consent or waiver or any Person); (hiv) enter into any agreement or arrangement that limits issue, sell, transfer or otherwise restricts in dispose of, pledge or otherwise encumber any material respect the Business, Buyer or Equity Interests of any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settleAcquired Company, or offer issue or propose to settle, grant any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) Right with respect to any Purchased SubsidiaryAcquired Company (other than to implement the SaleCo Reorganization); (v) repurchase or redeem any Equity Interests of any Acquired Company or any Right with respect to any Acquired Company (other than to implement the SaleCo Reorganization); (vi) amend, waive, modify or otherwise supplement any existing Affiliate Contract or enter into any new Affiliate Contract, in each case, that will not be terminated at or prior to the Closing; (vii) make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of material Tax accountingaccounting method, file any amended Tax Returns, enter into any closing agreement, settle any Tax claim, audit agreement or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries settlement agreement with respect to the Business (including the Purchased Subsidiaries)Taxes, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt obtain or enter into any plan Tax ruling, agreement, contract, understanding, arrangement or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Planplan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent that such transfer action would hinder materially increase any Tax Liability of any Acquired Company for a Tax period (or interfere with, or otherwise adversely affect, portion thereof) beginning after the ordinary course conduct of the Business.Closing Date;
Appears in 1 contract
Conduct of the Business. From the date hereof of this Agreement until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by (i) Seller shall conduct and operate the Transaction Documents, Business with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business Purchased Assets in the ordinary course consistent with past practice Ordinary Course of Business and shall use its commercially reasonable commercial efforts to preserve intact the present business organizations Purchased Assets and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuringii) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not towill not:
(a) acquire a material amount without the consent of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sellPurchaser, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement new Purchased Contract (other than a purchase order or other similar agreement entered into with release under any Business Employee or existing Purchased Subsidiary Employee Contract permitted under clause (or any amendment to any such existing agreementiii) of this Section 5.04(a)), (ii) other than as provided under amend or modify any Purchased Contract, unless such amendment or modification does not contain any material term (including, without limitation, terms related to price, quantity, term, extension of term, expiration or termination, warranty, limitation of liability or assignment or delegation) which is inconsistent with the Severance Planterms of the existing Purchased Contract, grant any new severance or termination pay to any Business Employee or (iii) increase accept any purchase order or release under any existing purchase order unless such purchase order or release is related to an existing Purchased Contract and does not contain any material term (including, without limitation, terms related to price, term, extension of term, expiration or termination, warranty, limitation of liability or assignment or delegation, but excluding quantity over which Seller has no ability to reject the compensation payable to any Business Employee, in each case other than in related purchase order or release) which is inconsistent with the ordinary course terms of business consistent with past practices in all material respects or as required by Lawthe existing Purchased Contract;
(mi) other than as required by Law or in the ordinary course of business take any action that would not materially increase the costs amend make any representation or terminate warranty of Seller under this Agreement inaccurate in any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Planmaterial respect at, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Righttime prior to, whether as licensor the Closing Date or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or (ii) fail to make any filing, pay any fee, or take any other commercially reasonable action necessary to maintain the ownership, validity and enforceability of prevent any such representation or warranty from being inaccurate in any material Business Patents or Business Trademarks owned by Seller or respect at any of its Subsidiariessuch time; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary take any action that would impair Seller's ability to dividend, distribute or otherwise pay to Seller perform its obligations under this Agreement or any of its Affiliates any Related Agreement or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause fail to take any Subsidiary commercially reasonable action necessary to remove, and pay prevent any such impairment of Seller's ability to Seller perform its obligations under this Agreement or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessRelated Agreement.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except Except as set forth in Schedule 5.01, as expressly contemplated required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing DateInitial Closing, MHR and the Company shall cause the Eureka Parties to conduct the Business in the ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use reasonable efforts to keep intact its business, keep available the services of its current employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors, lenders and others with whom it deals. In addition (and without limiting the generality of the foregoing), except as expressly required by the terms of this Agreement or as required by applicable Law, from the date hereof until the Initial Closing, MHR shall not, and shall not permit any of the MHR Directors to, without the prior written consent of MSI, (a) vote in favor of or consent to any matter reserved to the Board or the holders of the Equity Interests of the Company in respect of which the Series A-2 Members and/or the Series A-2 Managers (as defined in the Second A&R LLC Agreement) would have had a consent or veto right under the Second A&R LLC Agreement had the Second A&R LLC Agreement been in effect at the time of such vote or consent, (b) cause or permit the Company to issue any Units of the Company or any other Equity Interests of any Eureka Party other than (i) Class A Common Units at a price equal to or greater than $[REDACTED]* per Class A Common Unit, (ii) Units of the Company that are, except as set forth in Schedule 5.01this clause (b)(ii), as expressly contemplated equivalent in all respects to Class A Common Units and issued at a price less than $[REDACTED]* per Unit, which Units (the “Special Units”) will, upon the occurrence of the Initial Closing and without the requirement of further action by the Transaction Documents (including the Restructuring) Company or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except Person, automatically convert into such number of Class A Common Units had the Special Units been issued at a price equal to $[REDACTED]* per Unit (i) pursuant e.g., if between the date hereof and the Initial Closing Date, the Company issues [REDACTED]* Special Units at a price equal to existing Contracts or (ii) otherwise in $[REDACTED]* per Special Unit, then such Special Units shall, upon the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets occurrence of the Purchased Subsidiaries Initial Closing, automatically convert on the Initial Closing Date into [REDACTED]* Class A Common Units that were issued at a price equal to $[REDACTED]* per Class A Common Unit) and (other than Non-Business Assets), or in either case, any interests therein, except (iiii) pursuant to existing ContractsClass B Common Units, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create cause or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to permit the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail Company to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoingdistributions. For the avoidance of doubt, Seller the parties recognize that the Series A-2 Members and the Series A-2 Managers have certain consent and veto rights from the Initial Closing until December 31, 2014, and certain consent and veto rights from and after January 1, 2015, and the restrictions set forth in this Section 6.4 shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all determined on the basis as of the cash applicable consent and cash equivalents veto rights arising under the Second A&R LLC Agreement as would be in effect on any given date of such Purchased Subsidiary; determination (ii) removeprovided that nothing herein shall be construed to affect, reduce or cause any Subsidiary to remove, and pay to Seller or any eliminate MSI’s consent rights in respect of its Affiliates any cash and cash equivalents held the matters set forth in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, immediately preceding sentence prior to the extent such transfer would hinder or interfere withInitial Closing, or otherwise adversely affect, which consent right shall apply as though the ordinary course conduct of Second A&R LLC Agreement were in effect prior to the BusinessInitial Closing).
Appears in 1 contract
Samples: Transaction Agreement (Magnum Hunter Resources Corp)
Conduct of the Business. (a) From the date hereof of this Agreement until the Closing Date, except as set forth in Schedule 5.01, as (i) otherwise expressly provided for or expressly contemplated by applicable Law this Agreement, (ii) as set forth on Schedule 6.01, (iii) required by Legal Requirements or (iv) consented to in writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (will not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause its Subsidiaries to, and Seller shall conduct cause the Company and its Subsidiaries to, use their commercially reasonable efforts to operate in the Ordinary Course of Business in all material respects, maintain and preserve intact its current business, organization, goodwill, relationships with customers, suppliers, independent contractors, lenders, regulators and others having business dealings with it, retain the ordinary course services of its officers and employees, preserve its assets and properties in good repair and condition consistent with past practice (including the repair of the roof of the facility located at the Company Real Property in Baltimore, Maryland, to the extent such roof leaks or the condition thereof otherwise deteriorates such that such facility is not usable in the Ordinary Course of Business), and maintain capital expenditure levels consistent with past practice and shall use its commercially reasonable efforts to preserve intact consistent with the present business organizations and goodwill capital budget for 2018 of the BusinessCompany and its Subsidiaries, preserve a copy of which has been made available to Buyer; provided that, the present relationships foregoing and following notwithstanding, the Company may use all available cash to pay cash dividends on capital stock or other equity interests that are fully paid, and repay any Indebtedness and Transaction Expenses, prior to 11:59 PM on the date immediately prior to the Closing Date; provided that no such dividend shall be made that would result in (x) the Net Working Capital Amount being less than the Target Net Working Capital Amount or (y) the residual balance in the Company’s and its Subsidiaries’ bank accounts as of the Business with customers Closing being insufficient to cover checks issued but not presented for payment and suppliers and maintain the properties, machinery and equipment any other payments not yet presented related to the Business in good repair and operation condition (subject period prior to normal wear)the Closing Date. Without limiting From the generality date of this Agreement until the Closing Date, the Company shall deliver to Buyer copies of any budgets or financial statements for each of the foregoing Company and subject the Company Subsidiaries (or on a consolidated basis, as applicable) on a monthly basis, no later than 20 days after the end of each month (each of which shall be accompanied by a certificate of the Chief Financial Officer of the Company certifying as to applicable Law, from the accuracy and completeness of such budgets or financial statements).
(b) From the date hereof of this Agreement until the Closing Date, except as set forth in Schedule 5.01, as (i) otherwise expressly provided for or expressly contemplated by the Transaction Documents this Agreement, (including the Restructuringii) as set forth on Schedule 6.01, (iii) required by Legal Requirements or with Buyer’s prior written (iv) consented to in writing by Buyer (which consent (will not to be unreasonably withheld, conditioned or delayed), with respect to the BusinessCompany shall not, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to, and Seller shall cause the Company and its Subsidiaries not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts issue, deliver, sell, redeem, repurchase or otherwise acquire or dispose of any shares of its capital stock or other equity interests;
(ii) otherwise (A) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization or pay any dividend, except as contemplated by Section 6.01(a), with respect to capital stock or other equity interests or (B) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other material reorganization of the ordinary course consistent with past practice (in all material respects)Company or any of its Subsidiaries;
(biii) sellamend its or any of its Subsidiaries’ organizational documents;
(iv) become legally committed to any new capital expenditures requiring expenditures following the Closing Date in excess of $250,000 individually or $500,000 in the aggregate, leaseunless provided for in the capital budget for 2018 of the Company and its Subsidiaries, license a copy of which has been made available to Buyer;
(v) other than as required by any Legal Requirement or otherwise dispose the terms of any Purchased Assets Plans in existence on the date hereof, (w) increase the base salary or bonus opportunity of any employee, officer or director of the Company or any of its Subsidiaries, (x) terminate or amend any Plans in any manner, (y) otherwise enter into, adopt, or grant any new entitlements under any existing Plan (including adding additional participants or increasing the benefits of existing participants, or (z) take any action to accelerate the vesting or payment, or in any other way secure the payment, of compensation or benefits under any Plan;
(vi) mortgage, pledge or subject to any Lien, any capital stock or any material assets of the Purchased Subsidiaries (other than Non-Business Assets), Company or in either case, any interests thereinits Subsidiaries, except in the case of such assets, Permitted Liens;
(ivii) pursuant except in the Ordinary Course of Business, sell, assign or transfer any material tangible assets of the Company or its Subsidiaries;
(viii) (A) except in the Ordinary Course of Business, sell, assign, license, transfer, encumber, abandon or fail to existing Contractsdiligently maintain any of the Company’s or its Subsidiaries’ material Intellectual Property, or (iiB) otherwise in divulge, furnish to or make accessible any material trade secrets within any Intellectual Property of the ordinary course consistent with past practiceCompany or any of its Subsidiaries to any Person who is not subject to an enforceable written obligation to maintain the confidentiality of such trade secrets;
(cix) create change any accounting policies, practices or otherwise incur any Lien on any Purchased Asset procedures or any asset depreciation or amortization policies or rates of the Company or its Subsidiaries (including (A) tax accounting, (B) decreasing the amount of any Purchased Subsidiaryreserves for doubtful accounts receivable or writing down or writing up the value of any inventory or equipment or other asset, other than Permitted Liens except for decreases or write downs or write ups in the Ordinary Course of Business and (C) with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date payments of this Agreement accounts payable and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(dcollections of accounts receivable), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by LawGAAP,
(x) make any loan, amend advance or modify in any material respect or terminate any Contract listed in Schedule 3.09capital contribution to, or otherwise waive or release investment in, any material rights, claims or benefits of the Business thereunderPerson;
(gxi) settle or compromise any Action or threatened Action, whether administrative, civil or criminal, in law or in equity, or before any Governmental Authority, other than settlements or compromises that involve solely cash payments by the Company or its Subsidiaries not in excess of $500,000 in the aggregate, which amounts are paid in full prior to Closing or fully accrued in the calculation of Net Working Capital on the Closing Payment Certificate;
(xii) (A) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed have been a Material Contract if in Schedule 3.09 if such Contract were in place as of existence on the date of this Agreement, (B) amend, terminate, permit the lapse of, or waive or transfer, in each case other than whole or in part, its rights and interests in or under any such Contract entered into that would have been a Material Contract if in existence on the date of this Agreement, except in the ordinary course Ordinary Course of business consistent with past practice Business, or (C) take any action, or omit to take any action, that would reasonably be expected to result in all a material respects and on customary termsdefault under any Material Contract;
(hxiii) enter into acquire (by merger, consolidation or combination, or acquisition of stock or assets) any agreement corporation, partnership or arrangement that limits other business organization or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Persondivision thereof;
(ixiv) settlemake, change or offer or propose to settle, rescind any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any an annual Tax accounting period, adopt or change any method of accounting method, file any amended Tax accountingReturn, fail to file on a timely basis any Tax Return, fail to pay on a timely basis any Tax, enter into any closing agreement, settle any Tax claimclaim or assessment, audit surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any affirmative other similar action relating to surrender the filing of any right Tax Return or the payment of any Tax;
(xv) incur, become subject to claim a Tax refund, or guarantee any Indebtedness (or commitment in each case except respect of Indebtedness) other than pursuant to the Credit Facility or up to $100,000 of capital lease obligations;
(xvi) cancel any material Indebtedness (individually or in the ordinary course aggregate) or waive any claims or rights of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (value thereunder, other than for Pre-Closing Taxesthe transactions contemplated by Section 1.03(b)(v)(H);
(kxvii) make enter into, adopt or materially amend any material employment agreement (other than offer letters for at-will employment that do not provide for severance or change in control payments or benefits) or change of control or severance agreement with any method Employee, consultant, officer or director of accounting the Company or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(lxviii) terminate the employment of any Key Employee or director or officer of the Company or its Subsidiaries;
(ixix) effectuate any “plant closing” or employee “mass layoff” (as defined in the WARN Act;
(xx) enter into any Bargaining Agreementnew contracts, employment, deferred compensation, severance, retirement leases or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment licenses providing occupancy rights to any such existing agreement)Company Real Property, (ii) other than as provided under the Severance Planor amend any Company Real Property leases, grant any new severance or termination pay consent to any Business Employee sublease, assignment or (iii) increase the compensation payable to amendment of any Business Employeelease, in each case other than in the ordinary course sublease or license of business consistent with past practices in all material respects or as required by Lawany Company Real Property;
(mxxi) other than as required by Law sell or in the ordinary course dispose of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or Owned Real Property;
(xxii) enter into any plan Contract, commitment or arrangement that would be considered an Employee Plan or International Plan transaction that, if it were in existence existing on the date hereof or materially increase the benefits provided under any Employee Plan or International Planhereof, would have been required to be listed in Schedule 4.16, or promise to commit to undertake amend any of the foregoing in the future such Contract, commitment or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeestransaction listed on Schedule 4.16;
(nxxiii) adoptenter into any Contract, approvelease, consent sublease, license or other agreement to lease or propose purchase any change in the respective Organizational Documents new parcel of Seller or any real property if such new leased parcel of the Purchased Subsidiariesreal property would constitute Company Real Property for purposes of Section 4.08;
(oxxiv) negotiate or enter into any license collective bargaining agreement or other agreement of any material Business Intellectual Property Right, whether as licensor kind with any labor union or as licensee, other than in the ordinary course organization;
(xxv) form any Subsidiary of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller Company or any of its Subsidiaries;
(xxvi) cause to expire or terminate any insurance policies currently in effect;
(xxvii) fail to maintain all material Permits in full force and effect and to timely file all material reports, statements, renewal applications and other filings, and pay all fees and charges in connection therewith, that are required to keep such Permits in full force and effect;
(xxviii) disclose any material confidential or proprietary information of the Company, the Company Subsidiaries or their businesses to any Person other than to Buyer or otherwise in the Ordinary Course of Business subject to a customary nondisclosure agreement; or
(pxxix) agree or commit to do any of the foregoing. For Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the avoidance operations of doubtCompany prior to the Closing. Prior to the Closing, Seller the Company shall be permitted to (i) cause each Purchased Subsidiary to dividendexercise, distribute or otherwise pay to Seller or any consistent with the terms and conditions of this Agreement, complete control and supervision of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessoperations.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in During the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than NonPre-Business Assets), or in either case, any interests thereinClosing Period, except (i) pursuant to existing Contractsas set forth on Section 6.04 of the Disclosure Schedule, or (ii) as otherwise in the ordinary course consistent with past practice;
provided for by this Agreement (c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and including with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(dReorganization), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(fiii) except as required by Law, amend or modify (iv) as consented to in any material respect or terminate any Contract listed in Schedule 3.09writing by the Buyer (which consent will not be unreasonably withheld, delayed, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreementconditioned), (iiv) other than as provided for the use of available cash to repay any Funded Debt and pay Transaction Expenses prior to the Closing, or (vi) for borrowings in the Ordinary Course of Business under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;Acquired Companies’ existing credit facilities in effect on the date hereof, the Seller will (and will cause its Affiliates to) (x) use commercially reasonable efforts to carry on the Business of the Acquired Companies in the Ordinary Course of Business and substantially in the same manner as previously conducted and (y) not, and cause any of the Acquired Companies not to, take any action that would require disclosure under Section 5.06.
(ob) negotiate During the Pre-Closing Period, the Acquired Companies will use commercially reasonable efforts to utilize the Stimulus Funds in accordance in all Material respects with all applicable Laws and the applicable Relief Fund Payment Terms and Conditions. The Acquired Companies will maintain appropriate accounting records associated with such Stimulus Funds, including tracking the costs and other expenses for which stimulus funds are used and quantifying the lost revenue incurred by the Acquired Companies during the COVID-19 pandemic, in each case listed by each tax identification number of the applicable Acquired Companies. The Acquired Companies shall, after prior consultation and with the reasonable cooperation of the Buyer, be permitted to utilize the Stimulus Funds for one-time increases and incentive payments or enter into arrangements with their respective employees. Further, any license such Stimulus Funds that are not used in accordance with the applicable Relief Fund Payment Terms and Conditions shall not be distributed to the Seller or any other Person, or otherwise utilized, prior to the Closing. Without limitation of the foregoing, the Acquired Companies will not use or otherwise apply any material Business Intellectual Property Rightsuch Stimulus Funds received by them toward the reduction of the Deferred Payroll Tax Liability. The Acquired Companies will not request any advance payments from Medicare pursuant to the applicable CARES Act stimulus fund program, whether as licensor or as licensee, participate in any other than stimulus fund programs associated with the CARES Act.
(c) Nothing in this Section 6.04 is intended to result in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit the Acquired Companies ceding control to do any the Buyer of the foregoing. For Seller’s or the avoidance Acquired Companies’ basic Ordinary Course of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash Business and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, commercial decisions prior to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessClosing Date.
Appears in 1 contract
Conduct of the Business. From Each of Alps Holdco and Parent covenants and agrees that:
(a) Except as expressly contemplated by this Agreement or the Additional Agreements or as set forth on Schedule 7.1(a) , from the date hereof until the earlier of the Closing Date, except as set forth Date and the termination of this Agreement in Schedule 5.01, as expressly contemplated by applicable Law or by accordance with its terms (the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed“Interim Period”), Seller each party shall (I) conduct the Business its business only in the ordinary course (including the payment of accounts payable and the collection of accounts receivable), consistent with past practice practices, (II) duly and shall timely file all material 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 conform in with all applicable Law, including the Exchange Act, and Orders, in each case, in all material respects, and (IV) use its commercially reasonable efforts to preserve intact the present its business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)other third parties. Without limiting the generality of the foregoing foregoing, and subject to except as expressly contemplated by this Agreement or the Additional Agreements, as required by applicable Law, or as set forth on Schedule 7.1(a) , from the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with its terms, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyerother party’s prior written consent (which shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to the Businessneither Alps Holdco nor Parent shall, Seller shall not and shall cause or permit its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts amend, modify or supplement its memorandum or articles of association, certificate 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 material way or relinquish any material right under, any material contract, agreement, lease, license or other right or asset of such party or its Subsidiaries;
(iii) other than in the ordinary course consistent with past practice of business, modify, amend or enter into any contract, agreement, lease, license or commitment, including for capital expenditures, that extends for a term of one year or more and obligates the payment by it of more than $100,000 (individually or in all material respectsthe aggregate);
(biv) make any capital expenditures in excess of $100,000 (individually or in the aggregate);
(v) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinits material assets, except (i) pursuant to existing Contracts, contracts or (ii) otherwise in the ordinary course consistent with past practice;
(c) create commitments disclosed herein or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectspractices;
(fvi) solely in the case of Alps Holdco, sell, lease, license or otherwise dispose of any of any material Alps Holdco Owned IP outside of the ordinary course of business consistent with past practices;
(vii) solely in the case of Alps Holdco, 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 promise to pay any dividends or other distributions with respect to its capital stock or other equity securities; or (B) except as required contemplated hereby or by Lawany Additional Agreement, amend or modify in any material term, right or obligation with respect to any outstanding shares of its capital stock or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunderother equity securities;
(gix) enter into (A) make any Contract loan, advance or capital contribution in excess of $100,000 to any Person; (B) incur any Indebtedness in excess of $100,000 including a hedging 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 swap agreement (C) repay or similar arrangementsatisfy any Indebtedness in excess of $100,000, other than the repayment of Indebtedness in accordance with the terms thereof;
(x) that would be required suffer or incur any Lien in excess of $100,000, except for Permitted Liens, on its assets;
(xi) delay, accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness in excess of $100,000 owed to be disclosed it, or write off or make reserves in Schedule 3.09 if such Contract were excess of $250,000 against the same (other than, in place as the case of the date of this AgreementAlps Holdco Group, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termspractices);
(hxii) merge or consolidate or enter into a similar transaction with, or acquire all or substantially all of the assets or business of, any agreement other Person; make any material investment in any Person; or arrangement be acquired by any other Person;
(xiii) terminate or allow to lapse any material insurance policy protecting any of its material 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 plan in excess of $100,000 in the aggregate, or fail to continue to make timely contributions to each 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 $100,000 (exclusive of any amounts covered by insurance) or that limits imposes material injunctive or otherwise restricts other material non-monetary relief on it;
(xvi) except as required by IFRS, make any material change in its accounting principles, methods or practices or write down in any material respect the Business, Buyer or any value of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Personits assets;
(ixvii) settle, change its principal place of business or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreementjurisdiction of organization;
(jxviii) issue, redeem or repurchase any shares, 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 with respect to the Alps Holdco Group, the issuance of Alps Holdco Ordinary Shares upon the exercise or conversion of outstanding Alps Holdco convertible securities;
(xix) (A) make, change or revoke any Purchased Subsidiary, make or change any material Tax election, ; (B) change any annual Tax accounting periodperiods in any material respect; (C) settle or compromise any material claim, adopt notice, audit report or change any method assessment in respect of Tax accounting, Taxes of the Alps Holdco Group; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement, settle agreement relating to any Tax claim, audit Taxes of the Alps Holdco Group; or assessment, (E) surrender or take any affirmative action to surrender forfeit any right to claim a material Tax refund;
(xx) enter into any material transaction with or distribute or advance any material assets or property to any of its Affiliates (other than its Subsidiaries), other than the payment of salary and benefits in each case except the ordinary course;
(xxi) other than as required by a Plan, (A) materially increase or change the compensation or benefits of any employee or service provider of the Alps Holdco Group other than in the ordinary course of business, (B) accelerate the vesting or payment of any material compensation or benefits of any employee or service provider of the Alps Holdco Group, (C) make any loan to any present or former employee or other individual service provider of the Alps Holdco Group, other than advancement of expenses in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)practices, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iiiD) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend terminate any Bargaining Agreement collective bargaining agreement or recognize any other material agreement with a labor union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesorganization;
(nxxii) adopt, approve, consent fail to or propose duly observe and conform to any change applicable Laws and Orders in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesrespect; or
(pxxiii) agree or commit to do any of the foregoing. For .
(b) Notwithstanding the avoidance of doubtforegoing, Seller Alps Holdco and Parent and their respective Subsidiaries shall be permitted to (i) cause each Purchased Subsidiary take any and all actions required to dividendcomply in all material respects with the quarantine, distribute or otherwise pay to Seller “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any of its Affiliates other Law, directive, guidelines or recommendations by any Authority (including the Centers for Disease Control and the World Health Organization) in each case in connection with, related to or all of in response to COVID-19, including the cash and cash equivalents of such Purchased Subsidiary; (ii) removeCoronavirus Aid, or cause any Subsidiary to removeRelief, and pay to Seller Economic Security (CARES) Act or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and changes thereto.
(iiic) settle intercompany balances between any Purchased SubsidiaryNothing contained herein shall be deemed to give Parent or Parent Representative, on directly or indirectly, the one hand, and Seller right to control or direct Alps Holdco or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, operations of Alps Holdco prior to the extent such transfer would hinder or interfere withClosing. Prior to the Closing, or otherwise adversely affectAlps Holdco and Parent shall exercise, consistent with the ordinary course conduct of the Businessterms and conditions hereof, control over their respective businesses and operations.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing Date, except as required by Applicable Law, as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, Documents or with Buyer’s prior written consent (which shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present Business’s business organizations and goodwill relationships with third parties and to keep available the services of the Business, preserve current Business Employees.
(b) Notwithstanding the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as required by Applicable Law, as set forth in Schedule 5.01Section 5.01 of the Disclosure Schedule, as expressly contemplated by the Transaction Documents (including the RestructuringSection 7.08 of this Agreement) or with Buyer’s prior written consent (which shall not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(ai) amend the articles of incorporation, bylaws or other similar organizational documents of any Transferred Subsidiary;
(ii) acquire a material amount of assets from any other Person except (iA) pursuant to existing Contracts contracts or commitments disclosed to Buyer or (iiB) otherwise with respect to the purchase of raw material or supplies in the ordinary course consistent with past practice (in all material respects)practice;
(biii) sell, lease, license or otherwise dispose of any Purchased material Transferred Assets or assets material asset of the Purchased Transferred Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (iA) pursuant to existing Contractscontracts or commitments, (B) dividends or other distribution to Seller or its Affiliates or (iiC) otherwise with respect to sales of inventory and obsolete assets in the ordinary course consistent with past practice;
(civ) create or otherwise incur any Lien on any Purchased Asset material Transferred Assets or any material asset of any Purchased Transferred Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business AssetsLiens;
(dv) incur any capital expenditures, except for (A) those contemplated by the capital expenditure budget made available to Parent and Buyer prior to the date of this Agreement and (B) unbudgeted capital expenditures not to exceed $100,000 1,500,000 individually or $1,000,000 7,500,000 in the aggregate;; #88639600v31
(evi) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d5.01(b)(v), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the BusinessPerson, other than (A) in the ordinary course of business consistent with past practice in all material respectsor (B) between or among Transferred Subsidiaries;
(fvii) except as required by Applicable Law, enter into, or amend or modify in any material respect respect, or terminate any Contract listed in Schedule 3.09Material Contract, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, other than, in each case other than any such Contract entered into case, in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(iviii) settle, or offer or propose to settle, (A) any material Action involving the Business (excluding any Existing Litigation Right or any right relating to an Excluded Asset or Excluded Liability), except where the amount paid in settlement or compromise does not exceed (x) the amount of any reserves reflected on the Balance Sheet in respect of such Action or (y) the aggregate coverage provided for under any insurance policy in respect of such Action, in either case, as long as such settlement or compromise does not impose any material equitable relief on any Transferred Subsidiary, Buyer or its Affiliates, or (B) any Action relating to the transactions contemplated by this Agreement;
(jix) with respect to any Purchased Transferred Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, offset or other reduction in Tax liability, in each case except in the ordinary course of business consistent with past practices in all material respects practice or if such action will have no material effect on the Tax Liability liability of the Purchased Transferred Subsidiary (other than for Pre-Closing Taxes);
(kx) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)practice, except for any such change required by reason of a concurrent change in GAAP;
(lxi) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) materially increase the compensation payable to or benefits of the Business Employees other than in the ordinary course of business, as contemplated by the Carve-Out Plan, or as required by Applicable Law or the terms of any Business EmployeeBenefit Plan or any applicable collective bargaining, works council or other labor agreement;
(xii) grant, sell, deliver, dispose of, pledge or otherwise encumber any equity securities of any Transferred Subsidiary;
(xiii) split, combine or reclassify, or repurchase, redeem or otherwise acquire, any share capital or capital stock of any Transferred Subsidiary, or issue or authorize the issuance of any other securities in respect of, in each case other than lieu of or in substitution for shares of share capital or capital stock of any Transferred Subsidiary;
(xiv) hire any new Business Employees, unless such hiring is in the ordinary course of business consistent with past practices practice with respect to employees with an individual annual base salary not to exceed $250,000, or terminate any Business #88639600v31 Employees (other than for cause) with an individual annual base salary in all material respects or as required by Lawexcess of $250,000;
(mxv) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other than as required by Law material reorganization of any Transferred Subsidiary;
(xvi) license, sub-license, assign, transfer, or allow to lapse any material Intellectual Property, except in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesconsistent with past practice;
(nxvii) adoptexcept as provided in Section 5.07, approve, consent to or propose make any material change in the respective Organizational Documents manner in which it manages its working capital, including any material change in the payment of Seller accounts payable, the collection of accounts receivable or any the maintenance of the Purchased Subsidiariesinventory levels;
(oxviii) negotiate create, incur or enter into any license of assume any material Business Intellectual Property Right, whether as licensor or as licensee, amount of Indebtedness (other than incurrence of trade credit in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesbusiness); or
(pxix) authorize, announce, agree or commit to do any of the foregoing. For the avoidance .
(c) Nothing in this Section 5.01 shall restrict Seller or any of doubtits Subsidiaries, Seller shall be permitted in any respect, from taking any action to (i) consummate any of the transactions set forth in the Carve Out Plan and the Cash Repatriation Plan, (ii) cause each Purchased Transferred Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Transferred Subsidiary; (iiiii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Transferred Asset; and , (iiiiv) settle intercompany balances between any Purchased Transferred Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases or decreases in connection therewiththerewith or otherwise, except (v) contribute or loan cash to ASCO Power and/or cause ASCO Power to distribute cash, in each case, in order to adjust the fair market value of the ASCO Interests, by entering into intercompany loan transactions with Liebert Corporation or another Transferred Domestic Subsidiary and distributing the borrowed cash proceeds to Automatic Switch, (vi) in connection with any of clauses (i), (ii), (iii) and (iv) above, cause any Transferred Subsidiary to incur indebtedness for borrowed money from another Transferred Subsidiary and (vii) otherwise comply with or give effect to the extent such transfer would hinder or interfere withprovisions of this Agreement, or otherwise adversely affect, the ordinary course conduct of the Businessincluding pursuant to Section 7.08 hereof.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the earlier of (x) the Closing DateDate and (y) the valid termination of this Agreement pursuant to Section 8.01 (such period, the “Interim Period”), except as set forth on Schedule 6.01, consented to in Schedule 5.01, as expressly contemplated writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (will not to be unreasonably withheld, conditioned or delayed), Seller shall conduct reasonably required directly in connection with COVID-19 or the Business in Coronavirus Pandemic , or as contemplated or required by this Agreement or the ordinary course consistent with past practice and shall transactions contemplated hereby, the Company will use its commercially reasonable efforts to: (i) conduct its business in the ordinary course of business; and (ii) preserve its present commercial relationships, in all material respects, with its vendors and other Persons with whom the Relevant Entities have similar relationships, and to preserve intact the present business organizations operations, organization and goodwill of the Business, preserve the present relationships each of the Business with customers and suppliers and maintain foregoing; provided that the propertiesforegoing notwithstanding, machinery and equipment related the Relevant Entities may use all available cash to pay any Seller Transaction Expenses or Indebtedness, for distributions or dividends, or for any other purpose prior to the Business in good repair and operation condition Closing Effective Time.
(subject to normal wear). Without limiting b) During the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing DateInterim Period, except as otherwise set forth on Schedule 6.01, consented to in Schedule 5.01, as expressly contemplated writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (will not to be unreasonably withheld, conditioned or delayed), reasonably required in connection with respect COVID-19 or the Coronavirus Pandemic, or as contemplated or required by this Agreement or the transactions contemplated hereby, the Company will not take any action that, if taken prior to the Businessdate hereof, would be required to be disclosed pursuant to Section 4.06; provided that the foregoing notwithstanding, the Relevant Entities may use all available cash to pay any Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from Transaction Expenses or Indebtedness, for distributions or dividends, or for any other Person except (i) pursuant purpose prior to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;Closing Effective Time.
(c) create From the Closing Effective Time until the Closing, the Company agrees not to and shall cause the Relevant Entities not to (i) withdraw, remove or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect payments to the Businessthird parties of Cash, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
Company and the Relevant Entities, and (gii) enter into any Contract Contracts obligating the Company or the Relevant Entities to take any of the actions described in the foregoing clause (including i).
(d) During the Interim Period, Seller shall, and shall cause the Acquired Companies to, take any actions necessary to ensure that any employee of a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place Managed Practice, as of the date hereof, becomes an employee of this Agreementan Acquired Company on or before December 31, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;2021.
(he) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after Prior to the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any transfer all of its Affiliates any or all equity interests in each of Border Therapy Services, LLC, a Texas limited liability company (“Border”) and Lxxxxx Management, LLC, a Michigan limited liability company (“Lxxxxx”) to Agility Health Rehabilitation, LLC, a Michigan limited liability company (“Agility”) such that, at the cash Closing, each of Border and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that Lxxxxx is a Purchased Asset; and wholly owned Subsidiary of Agility (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business“Pre- Closing Restructuring”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Conduct of the Business. From (a) Except (x) as otherwise contemplated by this Agreement, (y) as consented to in writing by Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned) or (z) as provided on Section 6.15 of the Company Disclosure Schedule, from and after the date hereof until the earlier of the Closing Dateor the termination of this Agreement in accordance with its terms, Seller and Parent shall cause each of the Company and its Subsidiaries to (i) use commercially reasonable efforts to conduct the Business only in the ordinary course of business consistent with past practice, (ii) pay all Indebtedness, Taxes and other obligations when due, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or for amounts subject to a bona fide dispute by the Transaction DocumentsCompany or its Subsidiaries, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct iii) make purchases of goods and services required for the normal operation of the Business in the ordinary course of business consistent with past practice practice, (iv) pay for payables and shall other Liabilities in the ordinary course of business consistent with past practice, and (v) use its commercially reasonable efforts to preserve intact collect receivables in the present ordinary course of business organizations and goodwill of the Business, preserve the present relationships of the Business consistent with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition past practice.
(subject to normal wear). b) Without limiting the generality of Section 6.15(a), and except (i) as otherwise contemplated by this Agreement or the foregoing and subject to Transaction Documents, (ii) as otherwise required by Contract or applicable Law, from the date hereof until the Closing Date, except (iii) as set forth in Schedule 5.01, as expressly contemplated consented to by the Transaction Documents Purchaser (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned delayed or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiaryconditioned) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (iiiv) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets as provided on Section 6.15 of the Purchased Subsidiaries (other than Non-Business Assets)Company Disclosure Schedule, or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to from the date of this Agreement and unbudgeted capital expenditures until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller and Parent shall cause the Company and each of its Subsidiaries not to exceed $100,000 individually to: 47
(i) make any material change in any method of accounting or $1,000,000 accounting practice, policy or procedure, other than as required by GAAP; (ii) amend its Governing Documents; (iii) (A) declare, set aside, make or pay any dividend or other distribution or payments (whether in cash, stock or property or any combination thereof) in respect of any of its Equity Securities (except for the distribution of cash referenced in the aggregate;
Adjusted Balance Sheet); or (eB) redeem or otherwise acquire any of its Equity Securities, issue, sell or otherwise dispose any of its Equity Securities or grant any Person any right or option to acquire (including upon conversion, exchange, or exercise) any Equity Securities; (iv) merge or consolidate with any business or any corporation, partnership, limited liability company, association or other than in connection with actions permitted by Section 5.01(a) business organization or Section 5.01(d)division thereof, acquire all or substantially all of the assets of any Person or make any loans, advances or capital contributions to, or any investments in, any other Person with respect to Persons; (v) sell, lease, license or otherwise transfer any material assets or properties of the BusinessCompany or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice in all material respects;
practice; (fvi) except as required by Lawadopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization or other reorganization, or taken any action for the appointment of a receiver, administrator, trustee or similar officer; (vii) enter into, amend or modify terminate a Material Contract other than (A) in order to comply with applicable Law, (B) any material respect or terminate any Contract listed in Schedule 3.09termination at the expiration of its stated term, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(gC) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice practice; (viii) except as required by the terms of any Employee Benefit Plan in all material respects and existence on customary terms;
(h) enter into the date of this Agreement, increase the compensation or benefits of any agreement employee, director or arrangement that limits or otherwise restricts in any material respect individual independent contractor of the Business, Buyer Company or any of their respective Affiliates its Subsidiaries (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refundother than, in each case except case, in the ordinary course of business consistent with past practices practice); (ix) enter into, adopt or amend, in all any material respects respect, any Employee Benefit Plan in any manner except as required by applicable Law; (x) authorize, or if such action will have no material effect on make any commitment with respect to, any capital expenditures that are, in the Tax Liability aggregate, in excess of Two Hundred Fifty Thousand Dollars ($250,000), or fail to make capital expenditures consistent with the budget set forth in Section 6.15(b)(x) of the Purchased Subsidiary Company Disclosure Schedule; (xi) make any capital investment in, any loan to, or any acquisition of the securities or assets of, any Person or business; (xii) (A) create, incur, assume, forgive, guarantee or modify any Indebtedness (other than for Pre-Closing Taxes);
(k) make any material change in any method draws under revolving lines of accounting or accounting practice of Seller or any of its Subsidiaries with respect to credit existing on the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than date hereof in the ordinary course of business consistent with past practices in all material respects or as required by Law;
practice), (mB) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.off-balance sheet 48
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Molina Healthcare Inc)
Conduct of the Business. From the date hereof Effective Date until the earlier of the Closing DateDate or the termination of this Agreement pursuant to Section 6.01, except as set forth in Schedule 5.01, as expressly contemplated 5.01 or otherwise provided for by applicable Law this Agreement or consented to in writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller shall use its commercially reasonable efforts to conduct the Business in the ordinary course of business consistent with past practice and shall practice; provided that, the foregoing notwithstanding, Seller may use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related or distribute all Cash prior to the Business in good repair and operation condition (subject to normal wear)Closing for any purpose. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toshall:
(a) acquire a material amount use commercially reasonable efforts to maintain and preserve intact the current organization, business and franchise of assets from any other Person except (i) pursuant the Business and to existing Contracts or (ii) otherwise in preserve the ordinary course consistent with past practice (in all material respects)goodwill and relationships of the employees, customers, suppliers, and regulators of the Business;
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets preserve and maintain all of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise Permits used in the ordinary course Business, including the Mining Permits;
(c) cause the Tangible Personal Property to be maintained in substantially the same condition, in the aggregate, as it was on the date of this Agreement, subject to reasonable wear and tear;
(d) fulfill any orders for coal from customers in a manner that is consistent with past practices;
(e) perform, in all material respects, all of its obligations under all Contracts relating to the Business;
(f) maintain its books and records related to the Business in accordance with past practice;
(cg) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and comply in all material respects with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person all applicable Laws with respect to the Business;
(h) refrain from subjecting any material portion of the Purchased Assets to any Lien, except for Permitted Liens;
(i) refrain from entering into, amending waving any material right with respect to, or terminating (excluding, for the avoidance of doubt, by permitting expiration in accordance with its terms) (A) any Material Contract, DCS Contract or Lease (or any contract which would, if it were in existence on the date hereof, be required to be set forth as a Material Contract or Lease), other than in the ordinary course of business consistent with past practice and (B) any contract set forth on Schedule 5.01(i) hereto, provided that nothing in all material respects;
(fthis Section 5.01(i) except as required shall restrict the exercise by LawSeller of its contractual remedies under any Material Contract, amend DCS Contract or modify in any material respect Lease for breach or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including default by a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreementcounterparty thereto;
(j) maintain the Real Property in a manner and consistent with its current practices, provided that Seller shall not be responsible for any capital improvements or repairs to the Real Property, except as required by any Lease or other Contract with respect to any Purchased Subsidiarythereto, make or change any Tax electionand not transfer, change any annual Tax accounting periodsell, adopt or change any method of Tax accountingmortgage, enter into any closing agreementpledge, settle any Tax claim, audit or assessmentencumber, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability otherwise dispose of the Purchased Subsidiary (other than for Pre-Closing Taxes);Real Property, or any portion thereof; and
(k) make not implement or effect any material change reduction in any method of accounting labor force or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)lay-off, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay Seller determines may be reasonably required in its sole business judgment after giving notice to any Buyer at least 2 Business Employee or (iii) increase the compensation payable Days prior to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessimplementation thereof.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, (a) Except as expressly contemplated required or permitted by applicable this Agreement or required by Requirements of Law or as consented to in writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Coty US (such consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice X. Xxxxxxxx covenants and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawagrees that, from the date hereof until the Closing DateClosing, he shall cause the Company and each of its Subsidiaries to, and the Company agrees that it shall and shall cause each of its Subsidiaries to, operate and carry on, the business and operations of the Company and its Subsidiaries only in the ordinary course and consistent in all material respects with past practices. Consistent with the foregoing, except as set forth expressly required or permitted by this Agreement or by Requirements of Law or as consented to in Schedule 5.01, as expressly contemplated writing by the Transaction Documents Coty (including the Restructuring) or with Buyer’s prior written such consent (not to be unreasonably withheld, conditioned or delayed), from the date hereof until the Closing, X. Xxxxxxxx shall cause the Company and each of its Subsidiaries to, and the Company shall and shall cause each of its Subsidiaries to, use commercially reasonable efforts consistent with respect past practice to keep and maintain the Businessassets of the Company and its Subsidiaries in good operating condition and repair and use their respective commercially reasonable efforts to maintain the business organization of the Company and its Subsidiaries intact, Seller preserve the business operations of the Company and its Subsidiaries and to preserve the goodwill of the suppliers, licensors, employees, independent contractors, customers, Presenters, distributors and others having business relations with the Company or any of its Subsidiaries.
(b) Notwithstanding Section 5.1(a), except as expressly required or permitted by this Agreement or required by Requirements of Law or except as set forth on Schedule 5.1(b) or as consented to in writing by Coty (such consent not to be unreasonably withheld, conditioned or delayed), between the date hereof and the Closing, X. Xxxxxxxx shall cause the Company and each of its Subsidiaries not to, and the Company agrees that it shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) to not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;Closing:
(i) settleamend any of the Organizational Documents of the Company or any of its Subsidiaries;
(ii) issue, sell or offer transfer any Equity Securities of the Company or propose to settleany of its Subsidiaries or any options, warrants, calls, rights (including preemptive rights) or commitments of any material Action involving the Business or character relating to the transactions contemplated by this Agreementissuance, sale, transfer, purchase or redemption of any of the Equity Securities of the Company or any of its Subsidiaries;
(jiii) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any Equity Securities of the Company or any of its Subsidiaries, or make any other change with respect to their capital structures;
(iv) adopt a plan of complete or partial liquidation, or authorize or undertake a dissolution, consolidation, restructuring, recapitalization or other reorganization;
(v) declare, set aside, make or pay any dividends or other distributions (whether in cash, stock, property or otherwise) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method Equity Securities of accounting or accounting practice of Seller the Company or any of its Subsidiaries with respect (other than to a Company or any wholly-owned Subsidiary of the Business (including Company); provided, that the Purchased Subsidiaries)Company and its Subsidiaries may declare, except for any such change required by reason set aside, make or pay cash dividends and cash distributions so long as the aggregate cash in the Company and its Subsidiaries equals or exceeds $10,000,000, as of a concurrent change in GAAPthe Closing;
(lvi) (i) amend, modify or terminate any Material Contract, or enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than Contract that would be considered a Material Contract if in effect as provided under of the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employeedate hereof, in each case other than in the ordinary course of business consistent with past practices in all material respects respect of any Contract that constitutes a Material Contract, or would constitute a Material Contract if in effect as required by Lawof the date hereof, pursuant to Section 3.14(a)(viii), 3.14(a)(x), 3.14(a)(xi), 3.14(a)(xii) or 3.14(a)(xiii) (so long as (A) in the case of a modification or amendment to such a Material Contract in effect as of the date hereof, such modification or amendment does not modify or amend in a manner adverse to the Company any provisions that would make it a Material Contract under Section 3.14(a)(iv) and (B) in the case of the entry into a Contract, such Contract does not contain any provisions described in Section 3.14(a)(iv));
(mvii) (A) sell, lease, license, exchange, transfer, assign or otherwise dispose of any assets having a value in excess of $250,000 individually or in the aggregate, or impose or suffer to exist any Encumbrance upon any such assets (other than Permitted Encumbrances), of the Company or any of its Subsidiaries, in each case except for sales of inventory in the ordinary course of business consistent with past practice or (B) sell, lease, license, exchange, transfer, assign or otherwise dispose of, or mortgage, pledge or otherwise subject to an Encumbrance (other than Permitted Encumbrances) or permit to lapse, any material Owned Intellectual Property, other than expirations in accordance with respective statutory terms;
(viii) develop or implement discount or promotion activities outside of those offered in the ordinary course of business consistent with past practice;
(ix) merge with, enter into a consolidation agreement with or acquire the Equity Securities of any Person, or acquire any substantial portion of the assets or business of any Person, or otherwise acquire any assets with a value in excess of $250,000 individually or in the aggregate, other than the acquisitions of assets in the ordinary course of business consistent with past practice;
(x) cancel or compromise any Indebtedness other than for fair value and in the ordinary course of business;
(xi) commence or settle any action, suit, proceeding or investigation, other than such settlements in the ordinary course of business that (A) are only for money damages of less than $250,000 individually and $1,000,000 in the aggregate, (B) include a full release of the Company and its Affiliates and (C) do not include any admission of wrong-doing;
(xii) incur any Indebtedness for borrowed money other than draws on the Company’s credit facilities described in Schedule 5.1(b)(xii) in the ordinary course of business consistent with past practice;
(xiii) terminate any insurance policy maintained by the Company or its Subsidiaries and pertaining to the assets, operations or employees of the Company, any of its Subsidiaries or the Business;
(xiv) permit any Permit to be cancelled or lapse;
(xv) make any capital expenditure or commitment for any capital expenditure other than (A) capital expenditures in the amounts contemplated by the budget provided by the Company to Coty prior to the date hereof, (B) capital expenditures in the ordinary course of business not in excess of $200,000 in the aggregate, and (C) purchases of inventory in the ordinary course of business;
(xvi) adopt, enter into, modify or terminate any Company Benefit Plan (or any arrangement that would be a Company Benefit Plan if in effect as of the date hereof) other than modifications in the ordinary course of business consistent with past practice that do not increase (other than immaterial increases) the amount of compensation or benefits to any employee of the Company or any of its Subsidiaries or otherwise increase (other than immaterial increases) the costs of such Company Benefit Plans to the Company and its Subsidiaries;
(xvii) modify the compensation or benefits of any employee or independent contractor of the Company or any of its Subsidiaries (including through the exercise of discretion under any Company Benefit Plan), other than as expressly permitted or contemplated by this Agreement, required by Law the terms of a Company Benefit Plan or in the ordinary course of business that would consistent with past practice to the extent such modifications do not materially result in any increase the in costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing (other than immaterial increases in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as aggregate) to the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Company and its Subsidiaries;
(oxviii) negotiate recognize any labor union or enter into or modify any license of any material Business Intellectual Property Right, whether as licensor or as licenseeCollective Bargaining Agreement, other than as required by law;
(xix) terminate without cause the employment of any officer or employee, or any engagement with any independent contractor, of the Company or any of its Subsidiaries who is paid more than $250,000 on an annual basis, or remove any director;
(xx) except as otherwise required by applicable Requirements of Law, make any material election, or adopt any material accounting method on any Tax Return that is inconsistent with elections made or accounting methods used in preparing or filing similar Tax Returns in prior periods (including elections or accounting 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 to the extent such election or method is inconsistent with elections made or methods used in preparing or filing similar Tax Returns in prior periods);
(xxi) settle or otherwise compromise any material claim relating to Taxes other than the payment of Taxes owed in the ordinary course of the Business business consistent with past practice in all material respectspractice, enter into any closing agreement or similar agreement relating to Taxes, otherwise settle any dispute relating to Taxes, or fail request any ruling or similar guidance with respect to Taxes;
(xxii) make any filing, pay material change in any fee, method of accounting other than changes required by GAAP or take any other action necessary to maintain the ownership, validity and enforceability applicable Requirements of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesLaw; or
(pxxiii) agree or commit enter into any agreement to do take any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held actions specified in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 5.1(b).
Appears in 1 contract
Samples: Contribution Agreement (Coty Inc.)
Conduct of the Business. From the date hereof until the Closing Date, except Except as set forth in on Schedule 5.013.19, as expressly contemplated by applicable Law or by since January 1, 2015, the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct has conducted the Business only in the ordinary course of business consistent with past practice practice, and shall use its commercially reasonable efforts there has been no event, change or circumstance which, individually or in the aggregate, has had or could reasonably be expected to preserve intact have a Material Adverse Effect on the present business organizations and goodwill of the BusinessSeller, preserve the present relationships of the Business with customers and suppliers and maintain or the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)Purchased Assets. Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Dateforegoing, except as set forth in on Schedule 5.01, as expressly contemplated 3.19 (by reference to the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayedapplicable subsection hereof), with respect to the BusinessSeller has not since January 1, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to2015:
(a) acquire accelerated or delayed the production or delivery of any Inventory or the provision of any services in a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in manner inconsistent with the ordinary course consistent with Seller’s past practice (in all material respects)custom and practice;
(b) sell, lease, license increased or otherwise dispose decreased in any material respect the volume of any Purchased Assets raw materials or assets of supplies purchased by the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise Seller in the ordinary course of business consistent with past practice;
(c) create collected notes or otherwise incur any Lien on any Purchased Asset accounts receivable in advance of, or any asset later than, the dates when the same would have been collected by the Seller in the ordinary course of any Purchased Subsidiary, other than Permitted Liens and business consistent with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assetspast practice;
(d) incur paid any capital expendituresaccount payable or other liability of the Seller in advance of, except for those contemplated by the capital expenditure budget made available to Buyer prior to or later than, the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 when such liability would have been paid in the aggregateordinary course of business consistent with past practice;
(e) made any material change to the Seller’s cash management customs and practices;
(f) sold, assigned, transferred, disposed of or abandoned any material asset, property or right (other than Inventory in connection the ordinary course of business) of the Seller, or mortgaged, pledged or subjected such asset, property or right to any Lien, except for Liens for current property taxes not yet due and payable;
(g) sold, assigned, transferred, abandoned or permitted to lapse any Governmental Authorization that is required for the operation of the Business, or related to any of the Assumed Proprietary Rights or other intangible assets, or disclosed any material proprietary or confidential information to any Person, or granted any license or sublicense of any rights under or with actions permitted respect to any Assumed Proprietary Rights or other intangible assets;
(h) hired or otherwise retained the services of any employee or independent contractor other than to replace a terminated employee;
(i) made or granted any increase in, or amended (except as may be required by Section 5.01(alaw) or Section 5.01(d)terminated, make any loansexisting plan, advances program, policy or capital contributions arrangement for the benefit of any of the Transferred Employees or for which any Transferred Employee is eligible, including, but not limited to, any Employee Benefit Plan or adopted any new Employee Benefit Plan;
(j) made any loan or advance to, or investments inguarantee for the benefit of, or entered into any transaction with any Related Person other than regular salary and expense reimbursement payments;
(k) suffered any extraordinary loss, damage, destruction or casualty loss affecting the Seller, the Business or the Purchased Assets in excess of $100,000 or canceled, compromised, released or waived any right or claim of the Seller of any material value, in each case whether or not covered by insurance and whether or not in the ordinary course of business consistent with past practice;
(l) forgiven or cancelled any indebtedness or other amounts owed to, waived or released any other Person with respect to claim or right of any material value held by, the BusinessSeller, or settled any claim, action or Proceeding, in each case, other than in the ordinary course of business consistent with the Seller’s past practice in all material respectspractice;
(fm) except wrote off as required by Law, amend uncollectible any notes or modify in any material respect accounts receivable or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of other cash obligations owed to the Business thereunderSeller;
(gn) enter amended, cancelled, terminated or entered into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in listed on Schedule 3.09 if 3.9
(a) but for such Contract were in place as of the date of this Agreementamendment, in each case cancellation or termination;
(o) acquired any assets (other than any such Contract entered into supplies and raw materials in the ordinary course of business) or business consistent with past practice in all material respects and on customary terms;
(h) enter into of any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any other Person;
(ip) settle, or offer or propose to settle, made any material Action involving the Business or relating change to the transactions contemplated by this AgreementBusiness;
(jq) with respect to any Purchased Subsidiary, make or change made any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle amended any Tax claim, audit or assessmentReturn, or take settled any affirmative action dispute relating to surrender Taxes involving, relating to or affecting the Seller, the Business or any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)Assets;
(kr) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter entered into any Bargaining Agreementother material transaction, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with the Seller’s past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariespractice; or
(ps) agree or commit committed to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Power Solutions International, Inc.)
Conduct of the Business. From the date hereof until the earlier of the Closing DateDate and the date this Agreement is terminated in accordance with its terms, except as set forth in Schedule 5.01Section 5.01 of the Seller Disclosure Schedule, as expressly contemplated required by applicable Law or as required by this Agreement, as may be required to complete the Transaction Documents, with respect to any Excluded Liability or Excluded AssetReorganization, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause its Subsidiaries to, (i) conduct the Business in all material respects in the ordinary course consistent with past practice, and (ii) use commercially reasonable efforts to (A) preserve the Business substantially intact, and (B) maintain and preserve the assets, properties and material business relationships (including with employees) of the Business. Without limiting the generality of the foregoing, from the date hereof until the earlier of the Closing Date and the date this Agreement is terminated in accordance with its terms, except as set forth in Section 5.01 of the Seller Disclosure Schedule, as required by applicable Law or as required by this Agreement, as may be required to complete the Reorganization, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice not, and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill not permit any of the BusinessTransferred Entities, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related JV Entities (as limited by Seller’s express rights to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayedexercise control over such JV Entity), the Equity Sellers, the XX Xxxxxxx, or the Asset Sellers, in each case solely with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not Business to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts amend or (ii) otherwise in modify the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose Organizational Documents of any Purchased Assets Transferred Entity or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expendituresJV Entity, except for those contemplated by the capital expenditure budget made available to Buyer prior routine amendments to the date Organizational Documents of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually any such Transferred Entity or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than JV Entity in the ordinary course of business consistent with past practice which are not reasonably expected to result in all any material respectsadverse impact to Buyer, any Buyer Designee, any Transferred Entity or any JV Entity;
(fb) except as required by Lawacquire or sell, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09assign, transfer, lease, license, pledge, or otherwise waive or release dispose of any material rightsOwned Real Property, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into leases and pledges in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hc) enter into any agreement acquire or arrangement that limits sell, assign, transfer, lease, license, pledge, or otherwise restricts in any material respect the Business, Buyer or any dispose of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settleany Transferred Assets in excess of $1,000,000 individually or $5,000,000 in the aggregate or (ii) any Leased Real Property (whether by merger, consolidation, acquisition of stock or offer assets, license or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(jotherwise) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refundexcept, in each case except case, (A) as required by Material Contracts in existence on the date hereof, (B) any transaction among wholly owned Transferred Entities, or (C) in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)practice;
(kd) sell, transfer, pledge or otherwise dispose of any Transferred Interests or JV Interests;
(e) propose or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Transferred Entity or JV Entity or file a petition in bankruptcy or consent to the filing of any bankruptcy petition under any applicable Law;
(f) enter into any agreement with respect to the capital stock or Equity Interests of any Transferred Entity or JV Entity;
(g) issue, deliver, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any capital stock or other Equity Interests of, or become a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the capital stock or other Equity Interests of, a Transferred Entity or JV Entity, except in connection with (i) any transaction among wholly owned Transferred Entities, or (iii) the formation of Subsidiaries in the ordinary course of business consistent with past practice;
(h) reclassify, adjust, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock or other Equity Interests, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other Equity Interests of any Transferred Entity or JV Entity;
(i) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries policy used with respect to the Business (including the Purchased Subsidiaries)Business, except for any such change as required by reason of applicable Law or GAAP or recommended by Seller’s independent auditors with respect to Seller and its Subsidiaries as a concurrent change in GAAPwhole;
(lj) (i) enter into increase, in any Bargaining Agreementmaterial respect, employment, deferred compensation, severance, retirement the compensation or other similar agreement entered into with benefits payable to any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)Employee, (ii) other than as provided under the Severance Plan, grant any new retention, equity, bonus, severance or termination pay to any Business Employee Employee, or (iii) increase the compensation payable to enter into or amend any employment, consulting, indemnification, severance, change in control, retention or termination agreement with any Business Employee, except in each case other than (A) in the ordinary course of business consistent with past practices practice, (B) as reflected in all material respects the budget or financial forecast previously provided to Buyer, (C) as required by Lawapplicable Law or the terms of any Plan, or any Contract in existence on the date hereof, (D) in connection with renewals of Bargaining Agreements that do not increase aggregate costs by more than 5%, or (E) as specifically contemplated in this Agreement, or (F) if any and all associated Liabilities are retained by Seller;
(mk) other than as required by Law adopt or enter into any new Plan or amend or modify in any material respect or terminate any existing Plan, except (i) in the ordinary course of business that would not materially increase consistent with past practice, (ii) as reflected in the costs amend budget or terminate financial forecast previously provided to Buyer, (iii) as required by applicable Law or the terms of any Employee Plan or International Plan any Contract in existence on the date hereof, (iv) in connection with renewals of Bargaining Agreements that do not increase aggregate costs by more than 5% per year, (v) as specifically contemplated in this Agreement, or adopt or (vi) if any and all associated Liabilities are retained by Seller;
(l) enter into or amend any plan Bargaining Agreement or, through negotiation or arrangement otherwise, make any binding commitment to any labor organization with respect to the Business Employees, except (i) in the ordinary course of business consistent with past practice, (ii) as required by applicable Law, or (iii) in connection with renewals of Bargaining Agreements that would be considered an Employee Plan do not increase aggregate costs by more than 5%;
(m) make any loan, advancement or International Plan if it were investment in any Person, except (i) advances to employees in the ordinary course of business consistent with past practice, (ii) in accordance with the terms of Material Contracts in existence on the date hereof or materially increase that are entered into after the benefits provided under date hereof in the ordinary course of business consistent with past practice, (iii) any Employee Plan or International Plantransaction among wholly owned Transferred Entities, (iv) any transaction involving less than $10,000,000, or promise to commit to undertake any of the foregoing (v) otherwise in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesordinary course of business consistent with past practice;
(n) adopt, approve, consent to authorize new individual capital expenditures in excess of $5,000,000 individually or propose any change $10,000,000 in the respective Organizational Documents aggregate, in each case solely to the extent any Transferred Entity or JV Entity would be responsible for the payment thereof after the Closing or which would otherwise constitute an Assumed Liability at the Closing, except for capital expenditures (i) required pursuant to the terms of Seller Material Contracts in existence on the date hereof, or any of (ii) reflected in the Purchased Subsidiariesbudget or financial forecast previously provided to Buyer;
(o) negotiate or enter into any license of Contract that, if existing on the date hereof would be a Material Contract, amend or modify in any material respect adverse to the Business Intellectual Property Rightor terminate any Material Contract, whether as licensor or as licenseecancel, other than modify, amend, release, assign or waive any material rights or claims under any Material Contract, except (i) in the ordinary course of business consistent with past practice, or (ii) termination due to uncured breach by the Business counterparty under such Material Contract;
(p) cancel, compromise or settle any material Action for which any Transferred Entity or JV Entity would have any Liability after the Closing or which would otherwise constitute an Assumed Liability at the Closing, other than compromises, settlements or agreements (i) in the ordinary course of business consistent with past practice that involve only the payment or receipt of monetary damages that (A) are reserved against in all material respectsthe determination of Net Working Capital, or fail (B) are fully paid prior to make the Closing or (C) any filingsettlement or compromise involving, pay when aggregated with any feeother settlements or compromises during such period which are not permitted by clause (A) or (B) above, a payment of less than $5,000,000 in the aggregate, in any case without the imposition of equitable relief on, or take the admission of wrongdoing by, any other action necessary to maintain the ownershipTransferred Entity, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller JV Entity or any of its Subsidiariestheir respective directors, officers, employees or agents;
(q) solely with respect to the Transferred Entities, the JV Entities, the Business or the Transferred Assets, (i) make or change any material Tax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material method of Tax accounting, (iv) compromise or settle any material Tax Liability, (v) amend any material Tax Return, or (vi) surrender any right to claim a refund of material Taxes, in each case, except in the ordinary course of business consistent with past practice; or
(pr) agree or commit to do any of the foregoing. For Notwithstanding any provision herein to the avoidance of doubtcontrary, prior to Closing, Seller shall be permitted to, or cause its Subsidiaries to (iA) cause each Purchased Subsidiary Transferred Entity and JV Entity to dividend, distribute or otherwise pay to Seller or any of its Affiliates Subsidiaries any or all of the cash and cash equivalents Cash of such Purchased Subsidiary; Transferred Entity or JV Entity prior to 11:59 p.m. on the Friday before the Closing Date, including through share repurchases or capital reduction arrangements in foreign jurisdictions, (iiB) removetake any action with respect to any Retained Asset or Retained Liability or the Retained Businesses, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iiiC) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, Intercompany Balances and make capital increases in connection therewith, except and (D) enter into Contracts in each caseconnection with any of the foregoing. Notwithstanding anything else contained in this Section 5.01, Seller and its Subsidiaries may take commercially reasonable actions that would otherwise be prohibited by this Section 5.01 to the extent such transfer would hinder or interfere withnecessary to prevent the occurrence of, or otherwise adversely affectmitigate the existence of, emergency situations or address immediate risks of human health or damage to the environment, material equipment or other material assets of Seller or any of its Subsidiaries, so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course conduct of business. Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that prior to Closing nothing contained in this Agreement shall give Buyer or any of its Subsidiaries, directly or indirectly, the right to control or direct the operation of the Business, and prior to Closing, Seller and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Conduct of the Business. From On and after the date hereof of this Agreement and until the first to occur of the Closing Date and the Termination Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by Winget shall cause and the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Transferors shall conduct the Business business of xxx Xxansferred Winget Entities and the Transferred Assets in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)xxxxxxss. Without limiting the generality of the foregoing foregoing, the Transferors shall: (i) use commercially reasonable efforts to preserve the business organizations relating to each of the Transferred Winget Entities, (ii) use commercially reasonable efforts to preserve xxx xoodwill of the suppliers and subject to applicable Lawcustomers and others having business relationships with the Transferred Winget Entities, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuringiii) or with Buyer’s prior written consent (not cause to be unreasonably withheldpaid and perform all debts, conditioned obligaxxxxx and liabilities as and when due (except for obligations or delayedliabilities contested in good faith), in a manner consistent with past practices, and all leases, agreements, contracts and other commitments to which the Transferred Winget Entities are a party or with respect to the BusinessTransferred Assets xx xxcordance with the terms and conditions thereof, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiaryiv) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice comply in all material respects with all material laws that may be applicable to the Transferred Winget Entities or the Transferred Assets, (v) not create or allow thx Xxxxsferred Winget Entities to incur any indebtedness for borrowed money or any oxxxx xaterial obligations, and on customary terms;
(hvi) enter into except as otherwise permitted by this Agreement, not cause or permit any agreement of the Transferred Winget Entities to transfer any assets, including cash, (other than txx Xxxained Property) or arrangement that limits incur any liabilities or otherwise restricts in any material respect EXECUTION COPY obligations to the Business, Buyer Transferors or any of their respective Affiliates affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability exclusive of the Purchased Subsidiary (other than for Pre-Closing TaxesVenture Entities);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to . Notwithstanding the Business (including the Purchased Subsidiaries)foregoing, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any none of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller Transferors shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any in breach of its Affiliates any or all of the cash this paragraph if and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent the cause of such transfer would hinder or interfere with, or otherwise adversely affect, breach results from the ordinary course conduct failure of the BusinessDebtors to provide funding in accordance with the approved debtor-in-possession budget.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except Notices. Except as expressly set forth in Schedule 5.01V, as expressly contemplated by applicable Law or by Schedule VI, and Section 5.20, during the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct period from the Business in Agreement Date and continuing until the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill earlier of the Businesstermination of this Agreement and the Effective Time, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toCompany shall:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise conduct the Business solely in the ordinary course consistent with past practice (except to the extent expressly provided otherwise herein or as consented to in all material respects)writing by Acquirer) and in compliance with Applicable Law;
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contractspay and perform all of its undisputed debts and other obligations (including Taxes) when due, or (ii) otherwise in the ordinary course use commercially reasonable efforts consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset practice and policies to collect accounts receivable when due and not extend credit outside of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice, (iii) sell the Company’s products and services consistent with past practice as to discounting, license, service and maintenance terms, incentive programs and revenue recognition and other terms and (iv) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) assure that each of its Contracts (other than with Acquirer) entered into after the Agreement Date will not require the procurement of any consent, waiver or novation or provide for any change in all material respectsthe obligations of any party thereto in connection with, or terminate as a result of the consummation of, the Transactions, and shall give reasonable advance notice to Acquirer prior to allowing any Material Contract or right thereunder to lapse or terminate by its terms;
(d) maintain each of its leased premises in accordance with the terms of the applicable lease;
(e) promptly notify Acquirer of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Transactions;
(f) except as promptly notify Acquirer of any notice or other communication from any Governmental Entity (i) relating to the Transactions, (ii) indicating that a Company Authorization has been or is about to be revoked or (iii) indicating that a Company Authorization is required by Law, amend or modify in any jurisdiction in which such Company Authorization has not been obtained, which revocation or failure to obtain has had or would reasonably be expected to be material respect to Acquirer (following the Effective Time) or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunderCompany;
(g) enter into promptly notify Acquirer of any Contract (including a hedging inaccuracy in or swap agreement breach of any representation, warranty or similar arrangement) covenant of the Company herein; provided that would be required to be disclosed in Schedule 3.09 if such Contract were in place the phrase “as of the date of this Agreement, Agreement Date” in each case other than any such Contract entered into representation or warranty shall be disregarded for such purpose; and
(h) to the extent not otherwise required by this Section 4.1, promptly notify Acquirer of any change, occurrence or event not in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in or of any location change, occurrence or with any Person;
(i) settleevent that, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law individually or in the ordinary course of business that aggregate with any other changes, occurrences and events, would not reasonably be expected to be materially increase adverse to the costs amend Company or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake cause any of the foregoing conditions to the Closing set forth in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent Article VI not to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoingbe satisfied. For clarity, any actions taken by the avoidance Company in compliance with written instructions from Acquirer shall not be deemed a breach by the Company of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (Imperva Inc)
Conduct of the Business. (a) From the date hereof until the Closing Date, the Company shall carry on its and its Subsidiaries’ businesses according in the ordinary course of business and substantially in the same manner as currently conducted. Without limiting the foregoing, from the date hereof until the Closing Date, the Company shall issue its invoices, collect its accounts receivable and pay its obligations in a manner that is consistent with past practice, provided that Company may reduce its Indebtedness on an accelerated basis and reduce the age of its accounts receivable.
(b) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated otherwise provided for by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetthis Agreement, or with Buyer’s prior written consented to in writing by Parent (which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller the Company shall conduct the Business in the ordinary course consistent with past practice not, and shall use not permit its commercially reasonable efforts to preserve intact Subsidiaries to, take any action which, if taken after the present business organizations and goodwill date of the BusinessLatest Balance Sheet, preserve and prior to the present relationships date hereof, would have been required to be disclosed on Schedule 4.07; except for incidents that would require disclosure under Section 4.07(p); provided, that the Company may make cash distributions to Seller in amounts so long as the Company’s Cash on Hand shall not be less than Two Million Dollars ($2,000,000) as of the Business with customers Closing Date; provided, further, that the Company may renew its existing credit facilities and suppliers and maintain capital leases, as the propertiescase may be, machinery and equipment related on terms at least as favorable as those terms existing prior to the Business in good repair and operation condition such renewal.
(subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from c) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents prior consent of Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned delayed or delayed), with respect to conditioned) each of the Business, Seller Company and its Subsidiaries shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except fail to (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
; (cii) create or otherwise incur any Lien on any Purchased Asset or any asset timely pay all material Taxes due and payable; and (iii) promptly notify Buyer of any Purchased Subsidiarymaterial income, franchise or similar (or other than Permitted Liens and material) Tax claim, investigation or audit pending against or with respect to each of the Purchased SubsidiariesCompany and its Subsidiaries in respect of any material Tax matters, Liens with respect to the Non-Business Assets;including material Tax liabilities and material Tax refund claims.
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to From the date of this Agreement and unbudgeted hereof until the Closing Date, the Company shall maintain working capital expenditures not sufficient to exceed $100,000 individually or $1,000,000 in meet the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)Company’s operating expenses, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of and the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after Company’s currently planned operations through the Closing Date), from engaging or competing in any line of businessincluding, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make currently planned capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessexpenditures.
Appears in 1 contract
Samples: Merger Agreement (Heckmann Corp)
Conduct of the Business. (a) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9.1, except as otherwise provided for by this Agreement or consented to in writing by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed; provided that if the Purchaser does not respond to the Company’s request therefor within five (5) days, then such consent shall be deemed to have been provided), the Company shall use its commercially reasonable efforts to conduct the Business of the Company and its Subsidiaries in the ordinary course of business; provided that, the foregoing notwithstanding, the Company and/or any of its Subsidiaries may use available cash to repay any Closing Transaction Expenses or Indebtedness prior to the Closing Date, for distributions or dividends or for any other purpose, only as reasonably necessary and consistent with the terms of this Agreement and the Company’s and its Subsidiaries’ past practice.
(b) From the date hereof until the Closing Date, except as set forth otherwise provided for by this Agreement, consented to in Schedule 5.01, as expressly contemplated by applicable Law or writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (will not to be unreasonably withheld, conditioned or delayeddelayed (provided that if the Purchaser does not respond to the Company’s request therefor within five (5) days, then such consent shall be deemed to have been provided)) or as otherwise contemplated on Schedule 6.1(b) attached hereto, Seller shall conduct the Business in Company will not, and will not permit any of its Subsidiaries to, take any action which, if taken after the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill date of the Business, preserve the present relationships of the Business with customers Latest Balance Sheet and suppliers and maintain the properties, machinery and equipment related prior to the Business in good repair date hereof, would have been required to be disclosed on Schedule 3.6 pursuant to Section 3.6 or, if taken after December 31, 2022 and operation condition (subject prior to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Datehereof, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not would have been required to be unreasonably withheld, conditioned or delayed), disclosed on Schedule 3.8(i) with respect to any representation or warranty in Section 3.8(i). Notwithstanding anything to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise contrary in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assetsthis Section 6.1(b), or in either case, the Company and its Subsidiaries’ failure to take any interests therein, except (iaction prohibited by this Section 6.1(b) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;will not be a breach of Section 6.1(a).
(c) create Notwithstanding anything contained in this Agreement to the contrary, any action taken or otherwise incur any Lien on any Purchased Asset omitted to be taken by the Company or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated its Subsidiaries that otherwise could represent a failure by the capital expenditure budget made available Company or any of its Subsidiaries to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than operate in the ordinary course of business consistent with past practice arising out of, in all material respects;
(f) except as required by Lawresponse to, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09connection with, or otherwise waive or release as a result of, any material rights, claims or benefits of the Business thereunder;
following shall not be deemed a breach of this Section 6.1: (gi) enter into business or political conditions or conditions generally affecting the industry or segments therein in which the Company or any Contract of its Subsidiaries participate; (ii) any action taken or statement made by the Purchaser or its Affiliates or their respective representatives; (iii) compliance with the terms of, or the taking of any action required by, this Agreement or approved by the Purchaser, including any action taken in connection with obtaining regulatory or third party approvals, licenses or consents or any change, effect, event, occurrences or developments resulting therefrom; (iv) any breach, violation or non-performance of any provision of this Agreement by the Purchaser or its Affiliates; (v) any change in accounting rules (including GAAP), requirements, standards or principles or any change in applicable Laws or the interpretation or enforcement thereof by a hedging or swap agreement or similar arrangementGovernmental Authority; (vi) that would be actions required to be disclosed taken under applicable Laws (including in Schedule 3.09 if such Contract were in place compliance with Laws resulting from or relating to COVID-19 or other disease, virus or outbreak); (vii) any acts of war (whether or not declared), armed hostilities, sabotage or terrorism, insurrection, riots, civil disobedience, military actions or the continuation, escalation or worsening of any of the foregoing, whether or not threatened, occurring or commenced as of the date of this Agreement; (viii) any earthquakes, in each case hurricanes, tornados, wildfires, floods or other than natural disasters, epidemics, pandemics, disease outbreaks (including COVID-19 or other disease, virus or outbreak) or public health emergencies, acts of God or force majeure events, or the significant escalation or worsening of any such Contract entered into in of the ordinary course foregoing, whether or not threatened, occurring or commenced as of business consistent with past practice in all material respects and on customary terms;
the date of this Agreement; (hix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect conduct prohibited under this Section 6.1, which, if taken by the Business, Buyer Company or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)its Subsidiaries, from engaging is intended to prevent or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, mitigate any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material adverse effect on the Tax Liability results of operations or financial condition of the Purchased Subsidiary Company and its Subsidiaries taken as a whole; or (other than for Pre-Closing Taxes);
(kx) make any material change deterioration in any method the business, financial condition and/or prospects of accounting or accounting practice of Seller the Company or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder it relates to or interfere with, arises out of circumstances or otherwise adversely affect, the ordinary course conduct conditions existing as of the Businessdate of this Agreement that were disclosed to the Purchaser as of or prior to the date of this Agreement, including those matters set forth in the Disclosure Schedule.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Initial Closing Date, except (a) as set forth in Schedule 5.01, as expressly contemplated required by applicable Law Law, (b) as necessary to effectuate the transfer of the Purchased Subsidiaries and Purchased Assets, (c) as otherwise expressly permitted or by the required under any Transaction DocumentsDocument, with respect to any Excluded Liability or Excluded Asset, or (d) with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed)) or (e) would otherwise have been required to be set forth on Schedule 4.07 had it occurred after the Financial Statement Date and prior to the date hereof, Seller shall, and shall cause its Subsidiaries to, conduct the Business in all material respects in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business Leased Real Property in good repair and operation operating condition (subject to normal wearwear and casualty or condemnation excepted). For the avoidance of doubt, Seller shall be permitted to (x) collect all cash from the Restaurants prior to the Initial Closing Date and (y) receive and retain all payments related to the Business prior to the Initial Closing Date. Notwithstanding anything to the contrary in this Agreement, Buyer may not, prior to or on the Initial Closing Date, control, manage or otherwise interfere with the Seller’s conduct of the Business. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Initial Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
: (a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any material Purchased Assets Asset or assets material asset of the Purchased Subsidiaries (other than Non-Business Assets)Subsidiaries, or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course of business consistent with past practice;
practice in all material respects; (cb) create or otherwise incur any Lien on any material Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and Liens; (c) incur any capital expenditures with respect to the Purchased SubsidiariesBusiness, Liens with respect except pursuant to the Non-Business Assets;
existing Contracts; (d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a6.01(c) or Section 5.01(d)as otherwise contemplated by this Agreement, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
; (f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(ge) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 4.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
other than any Replacement Contracts; (hf) enter into any agreement except as required by Law or arrangement that limits to create a Replacement Contract, amend or otherwise restricts modify in any material respect the Businessany Material Contract, Buyer other than any amendment or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter modification entered into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect containing terms, taken as a whole, not materially less favorable to the Business (including than the Purchased Subsidiaries), except for terms of any such change required by reason similar Material Contract in effect as of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesthis Agreement; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.30
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement
Conduct of the Business. (a) From and after the date hereof of this Agreement and until the Closing DateDate (or earlier termination of this Agreement pursuant to Section 9.01), Seller shall (except as set forth required or permitted pursuant to the terms hereof) cause Hornet and its Subsidiaries to and use commercially reasonable efforts to cause Eureka and its Subsidiaries to:
(i) conduct the Business in Schedule 5.01the Ordinary Course of Business;
(ii) keep in full force and effect insurance applicable to its assets and operations comparable in amount and scope of coverage to that currently maintained; and
(iii) use commercially reasonable efforts to preserve intact their goodwill and relationships with customers, as expressly contemplated by applicable Law or by the Transaction Documents, suppliers and others having business dealings with respect to any Excluded Liability the Business.
(b) From and after the date of this Agreement and until the Closing Date (or Excluded Assetearlier termination of this Agreement pursuant to Section 9.01), or with Buyer’s without the prior written consent of Purchaser (which consent will not to be unreasonably withheld, conditioned or delayed)) or except as required by or as necessary to comply with Law, Seller shall conduct not permit the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the BusinessAcquired Entities to, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related except as required or permitted pursuant to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date terms hereof until the Closing Date, except or as set forth in Schedule 5.01, as expressly contemplated by Section 6.01 of the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toDisclosure Schedules:
(a) acquire a material amount of assets from any other Person except (i) pursuant make or permit to existing Contracts or be made any change in the Organizational Documents of such Acquired Entities;
(ii) otherwise make any capital expenditure in excess of $500,000, except for (A) capital expenditures set forth in Section 4.22 of the Disclosure Schedules, (B) capital expenditures expressly provided for in the ordinary course PSA Budgets or (C) in response to an Emergency;
(iii) make or permit to be made any change to the PSA Budgets, other than changes made in the Ordinary Course of Business (including, for the avoidance of doubt, consistent with past practice (in all custom and practice) and not material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(eiv) amend or permit the amendment of the rights, privileges or terms of the Equity Interests of such Acquired Entities;
(v) issue, deliver, pledge, grant, encumber or sell, or authorize or propose the issuance, delivery, pledge, grant, encumbrance or sale by any Acquired Entity of, any Equity Interests;
(vi) reclassify, split, combine, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any Equity Interests;
(vii) incur, assume or guarantee any indebtedness for borrowed money other than such indebtedness incurred under the Credit Agreements or trade credit in the Ordinary Course of Business or as otherwise approved pursuant to a PSA Budget;
(viii) make any sale, assignment, transfer, lease or other conveyance of any of its material assets except in the Ordinary Course of Business or dispositions of inventory or of worn out or obsolete equipment;
(ix) subject any of its assets, or any part thereof, to any Lien except Permitted Liens;
(x) acquire, directly or indirectly, (A) an Equity Interest in any business or division of any Person (whether by merger, consolidation or otherwise) or (B) any material assets or material properties except for inventory in the Ordinary Course of Business and/or in connection with actions permitted capital expenditures consistent with the PSA Budgets;
(xi) merge or consolidate with any person or restructure, reorganize, dissolve or completely or partially liquidate;
(xii) pay, loan or advance any amount to any holder of Acquired Interests or such holder’s Affiliates;
(xiii) except as contemplated by Section 5.01(a) this Agreement, sell, transfer or Section 5.01(d), make lease any loans, advances properties or capital contributions assets to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits with, any holder of such Acquired Interests or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Personsuch holder’s Affiliates;
(ixiv) settleexcept for ordinary course trade credit, make any loan, advance or offer capital contribution to or propose investment in any Person (other than to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreementanother Acquired Entity);
(jxv) with respect to any Purchased Subsidiary, (A) make or change any material Tax election, (B) settle or compromise any claim, notice, audit report or assessment in respect of material Taxes, (C) change any annual Tax accounting period, (D) adopt or change any method of Tax accounting, (E) enter into any closing Tax allocation agreement, settle Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax claimTax, audit or assessment, or take any affirmative action to (F) surrender any right to claim a material Tax refund, (G) file any amended Tax Return or (H) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(xvi) make any change in any financial accounting principle, estimate or practice, except as may be required by Law or GAAP or by reason of a change in relevant facts;
(xvii) make any regulatory filing other than in the Ordinary Course of Business or as required by applicable Law or in connection with the transactions contemplated hereby;
(xviii) make material amendments or modifications to, cancel, waive or assign any material rights or material obligations under or otherwise change in any material economic respect any Material Contract;
(xix) enter into or assume any Contract that would constitute a Material Contract if such Contract existed on the date hereof, other than any Contract entered into in the Ordinary Course of Business;
(1) settle any lawsuits, actions, claims, investigations, reviews, or other judicial or administrative proceedings, at Law or in equity, before or by any Governmental Entity or arbitration proceeding, in each case except that would result in the ordinary course of an Acquired Entity having material liability or being enjoined from engaging in any business consistent with past practices in all activity, or would require material respects monitoring, removal, cleanup, remediation, restoration or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary correction under Environmental Law, following Closing, or (other than for Pre-Closing Taxes);
(k2) make otherwise waive any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries right with respect to the Business assets or the businesses of either of the Acquired Entities;
(xxi) fail to pay when due any material account payable or other material liability unless it is being contested in good faith;
(A) except as required by Law (including as may be required pursuant to the Purchased Subsidiariesterms of an existing Contract), establish, adopt, enter into or amend any Plan in a manner that would result in an increase in cost to such Acquired Entities or that would accelerate the funding, vesting or payment of any amount or benefit, (B) except as required by Law (including as may be required pursuant to the terms of any existing Contract), grant any severance, termination, change of control or retention pay to any Employee (except to the extent fully paid prior to Closing), (C) enter into or materially amend any employment, severance, retention, incentive, change in control or other compensation-related agreement with any Employee, (D) hire or terminate the employment of any Employee, except for any such change required by reason cause or in the Ordinary Course of a concurrent change in GAAP;
(l) (i) enter into any Bargaining AgreementBusiness with respect to non-officer level employees, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iiiE) increase the compensation payable to of any Business Employee, in each case other than except for immaterial increases (individually or in the ordinary course aggregate) of business compensation in the Ordinary Course of Business (including, for the avoidance of doubt, consistent with past practices in all material respects custom and practice) to non-officer level employees or as required by Law;
(m) other than as required by Law or Contract; provided, however, that nothing in this Section 6.01(b)(xxii) shall: (x) restrict the payment in the ordinary course Ordinary Course of business Business of any bonuses or other incentive payments accrued for performance periods ending prior to the Closing Date, or (y) restrict or prohibit the actions described on Schedule 6.01(b)(xxii);
(xxiii) except to the extent that would not materially increase reasonably be expected to be adverse to Purchaser in any material respect (including taking into account Purchaser’s ownership of the costs amend Acquired Entities), amend, modify or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Redemption Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesPayment Obligation Agreement; or
(pxxiv) agree or commit itself to do any of the foregoing. For Requests for approval of any action restricted by this Section 6.01 shall be delivered to both of the avoidance following individuals, each of doubtwhom shall have full authority to grant or deny such requests for approval on behalf of Purchaser: Equitrans Midstream Corporation 000 Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Attn: Xxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx Equitrans Midstream Corporation 0000 Xxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Attn: Xxxxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx Purchaser’s approval of any action restricted by this Section 6.01 shall be considered granted within 10 days (unless a shorter time is reasonably required in connection with an Emergency and such shorter time is specified in Seller’s notice) after Seller’s written notice to Purchaser in accordance with Section 12.04 requesting such consent unless Purchaser notifies Seller in writing to the contrary during that period. Notwithstanding anything to the contrary, Seller may permit each Acquired Entity to take commercially reasonable actions with respect to Emergency situations or to otherwise comply with applicable Law and Seller shall be permitted as soon as reasonably practicable inform Purchaser of any such actions taken outside the Ordinary Course of Business. Notwithstanding anything to the contrary, Seller may permit each Acquired Entity to declare or pay any cash distributions in respect of any Equity Interests of such Acquired Entities. Notwithstanding anything to the contrary in this Section 6.01, (i) cause each Purchased Subsidiary with respect to dividendEureka and its Subsidiaries, distribute to the extent the Eureka LLC Agreement does not provide Seller a consent or otherwise pay approval right over any of the actions set forth in clauses (i) through (xxiv) above, then Seller shall only be obligated to Seller use commercially reasonable efforts to not permit Eureka or any of its Affiliates Subsidiaries to take any or all of the cash and cash equivalents of such Purchased Subsidiary; actions, (ii) remove, or cause any Subsidiary the Acquired Parents may pay cash distributions to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; their equity holders as such equityholders may elect and (iii) settle intercompany balances between any Purchased SubsidiarySeller may, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, prior to the extent such transfer would hinder or interfere withClosing Date, or otherwise adversely affect, seek the ordinary course conduct required approval of the Businessequityholders of the Acquired Entities under the requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated pursuant thereto (including seeking any necessary waiver from any affected individual) with respect to any payments that potentially could be excess parachute payments so that, if such approval is received, such payments that are based on arrangements in place at the Closing will not be characterized as parachute payments under Section 280G of the Code. In no event shall Seller be required to cause the Acquired Entities to compel any Person to waive any existing rights under any Contract that such Person has with the Acquired Entities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (EQM Midstream Partners, LP)
Conduct of the Business. (a) From the date hereof until the Closing Date, the Company shall use its commercially reasonable efforts to carry on its and its Subsidiary’s businesses according in the ordinary course of business and substantially in the same manner as currently conducted; provided that, the foregoing notwithstanding, the Company and its Subsidiary may use all available cash currently held by the Company and its Subsidiary or otherwise derived from the operations of its business consistent with this Section 6.01(a) to repay any Indebtedness or make any distribution to their stockholders, in each case prior to the Closing.
(b) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated otherwise provided for by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetthis Agreement, or with Buyer’s prior written consented to in writing by Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller the Company shall conduct the Business in the ordinary course consistent with past practice not, and shall use not permit its commercially reasonable efforts to preserve intact Subsidiary to, take any action which, if taken after the present business organizations and goodwill date of the BusinessLatest Balance Sheet, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related prior to the Business in good repair and operation condition date hereof, would have been required to be disclosed on Schedule 4.07.
(subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from c) From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents consent of Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned delayed or delayed), with respect to conditioned) each of the Business, Seller Company and its Subsidiary shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except fail to (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, timely pay all material Taxes due and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Assetpayable; and (iii) settle intercompany balances between promptly notify Buyer of any Purchased Subsidiarymaterial income, on the one handfranchise or similar (or other material) Tax claim, and Seller investigation or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in audit pending against or with respect to each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessCompany and its Subsidiary in respect of any material Tax matters, including material Tax liabilities and material Tax refund claims.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing DateSPAC Merger Effective Time or, if earlier, the termination of this Agreement in accordance with Article XII, except as set forth in Schedule 5.01, as expressly contemplated or permitted by this Agreement or Additional Agreements or as required by applicable Law or by the Transaction DocumentsLaw, with respect each Party shall, and shall cause its Subsidiaries to any Excluded Liability or Excluded Assetuse its commercially reasonable efforts to, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall i) conduct the Business their respective business only in the ordinary course consistent with past practice in all material respects, and shall use its commercially reasonable efforts to (ii) preserve intact its assets, keep available the present business organizations services of its current officers and goodwill of the Business, preserve the present key employees and maintain in all material respects its current relationships of the Business with key suppliers and customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)other third parties with which it has material business relations. Without limiting the generality of the foregoing and subject to foregoing, except as expressly contemplated or permitted by this Agreement or Additional Agreements or as required by applicable Law, from the date hereof until the Closing DateSPAC Merger Effective Time, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of DoubleDragon and SPAC (provided that (x) such consent shall not to be required if DoubleDragon or SPAC reasonably believes that obtaining such consent may violate applicable Law, (y) such written consent shall not be unreasonably withheld, conditioned or delayedand (z) such other Party shall respond to such request for written consent as soon as practicable and such written consent shall be deemed given if such other Party does not respond to such request with three (3) Business Days after the receipt of the request), with respect each of the Parties shall use commercially reasonable efforts to the Businessnot, Seller shall not and shall use commercially reasonable efforts to cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) amend, modify or supplement its Organizational Documents other than pursuant to existing Contracts or this Agreement;
(ii) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any shares or other equity or voting securities of any of the Company Group or the SPAC (except with regards to any redemptions) other than pursuant to this Agreement including, for the avoidance of doubt, (1) the issuance of shares by Hotel101 Global to DDPC for certain asset infusions, (2) the issuance of Key Executive Shares by PubCo or (3) the issuance of shares by Hotel101 Global to one or more strategic investors;
(iii) modify, amend, enter into, consent to the termination of, or waive any material rights under, any Material Contract of any of the Company Group (or any Contract that would be a Material Contract of any if such Contract has been entered into prior to the date hereof) or any material Contract of the SPAC, except for in ordinary course of business consistent with past practice or pursuant to this Agreement including, for the avoidance of doubt, in connection with (in all material respects)1) the issuance of shares by Hotel101 Global to DDPC for certain asset infusions or (2) the issuance of Key Executive Shares by PubCo;
(biv) sell, lease, license or otherwise dispose make any capital expenditures of any Purchased Assets or assets member of the Purchased Subsidiaries Company Group or SPAC, except to the extent of the Company Group, in excess of US$1,500,000 (other than Non-Business Assets), individually or in either case, any interests therein, the aggregate) except (i) pursuant to existing Contracts, or (ii) otherwise for in the ordinary course of business consistent with past practice;
(cv) create sell, transfer, lease, sublease, mortgage, license, grant or otherwise incur any Lien on any Purchased Asset on, or any asset otherwise dispose of any Purchased Subsidiaryof the Company Group’s or the SPAC’s assets, other than Permitted Liens and with respect to the Purchased Subsidiariestitle or interest in, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments inunder Intellectual Property Rights, any other Person with respect except to the Businessextent of the Company Group, other than (1) sales of products to customers in the ordinary course of business consistent with past practice and not exceeding US$1,500,000 individually or in the aggregate and (2) any sale, transfer or disposal of assets for each on arm’s length terms and provided that such net disposal proceeds will be reinvested in the Business or used to pay down debt within 364 days;
(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 described in Section 8.2) in which case no consent would be required;
(1) establish, adopt, amend or terminate any share incentive plan of any member of the Company Group or the SPAC, or (2) grant, accelerate or amend the terms of any equity awards to any employee of the Company Group or SPAC or to any person except as contemplated by this Agreement;
(viii) obtain or incur any loan or other Indebtedness, expect (1) to the extent of the Company Group, in excess of US$1,500,000 individually or in the aggregate, or assume, guarantee or otherwise become responsible for the obligations of any Person for Indebtedness, except for in ordinary course of business consistent with past practice; and (2) to the extent of the SPAC, in excess of US$1,000,000;
(ix) commence, settle, release, waive or compromise any ongoing, pending or threatened Action of or against any member of the Company Group or the SPAC (1) for an amount in excess of US$1,500,000 (exclusive of attorney’s fees), (2) that would impose any material restrictions on the business or operations of any member of the Company Group or SPAC, (3) that is brought by or on behalf of any current, former or purported holder of any share capital or other securities of any member of the Company Group or SPAC relating to the Transactions; or (4) granting injunctive or other equitable remedy against the Company Group or SPAC that would reasonably be expected to constitute a Material Adverse Effect or a SPAC Material Adverse Effect (as applicable);
(x) adopt or enter into a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any member of the Company Group or SPAC;
(xi) acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or acquisition of shares or assets, any assets, securities or properties, in aggregate, with a value or purchase price, except to the extent of the Company Group, in excess of US$1,500,000 individually or in the aggregate, in any transaction or related series of transactions;
(xii) fail to maintain in full force and effect material insurance policies covering the Company Group or the SPAC and their respective properties, assets and businesses in a form and amount consistent with past practices;
(xiii) make any change in its accounting principles or methods of accounting, other than as may be required by the applicable accounting principles or applicable Law;
(xiv) issue, sell, transfer, pledge, dispose of, place any Lien, redeem or repurchase any shares or other equity or voting securities of SPAC or 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 SPAC or any member of the Company Group, except (1) to the extent of the Company Group, for transactions among the members of the Company Group, (2) to the extent of SPAC, for (A) trading of its securities on public markets; (B) redemptions required under its Organizational Documents or (C) meeting listing requirements;
(xv) fail to maintain its books, accounts and records in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into respects in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hxvi) enter into revalue any agreement of its material assets or arrangement that limits or otherwise restricts in make any material respect change in accounting methods, principles or practices, except to the Business, Buyer extent required to comply with GAAP and/or IFRS and after consulting with DoubleDragon’s or any of their respective Affiliates the SPAC’s outside auditors;
(including xvii) except in the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line ordinary course of business, in any location make, change or with any Person;
(i) settle, or offer or propose to settle, revoke any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change amend any annual Tax accounting period, adopt or change any method of Tax accountingReturn in a material manner, enter into any closing agreementagreement or seek any ruling from any Authority with respect to material Taxes, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes except for automatic extensions of time to file Tax refund, in each case except Returns obtained in the ordinary course of business consistent business, change any method of Tax accounting or Tax accounting period, or initiate any voluntary Tax disclosure to any Authority with past practices respect to a material amount of Taxes; in all material respects or each case, if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries)could, except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law individually or in the ordinary course aggregate, reasonably be expected to have the effect of business that would not materially increase increasing the costs amend present or terminate future Tax liability and provided any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or Company Party may take any other action that it determines, acting reasonably, is necessary to maintain optimize its expected liability for Taxes following the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesTransaction; or
(pxviii) agree or commit undertake any legally binding obligation to do any of the foregoing. For Nothing contained in this Section 7.1 shall give to any Party, directly or indirectly, the avoidance right to control or direct the ordinary course of doubtbusiness operations of any other Party prior to the Closing. Prior to the Closing, Seller each of SPAC, the Company Group and the Acquisition Entities shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Law.
(b) From the date hereof through the Closing Date, SPAC 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 DoubleDragon’s prior written consent (which shall not be permitted unreasonably withheld), SPAC shall not, and shall not cause its Subsidiaries to amend, waive or otherwise change the Investment Management Trust Agreement in any manner adverse to SPAC.
(c) Neither Party shall (i) cause each Purchased Subsidiary take or agree to dividend, distribute take any action that might make any representation or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents warranty of such Purchased Subsidiary; party inaccurate or misleading in any material respect at, or as of any time prior to, the Closing Date or (ii) removeomit to take, or cause agree to omit to take, any Subsidiary action necessary to removeprevent any such representation or warranty from being inaccurate or misleading in any material respect at any such time provided that the foregoing shall not apply to representations and warranties made with respect to a certain date.
(d) From the date hereof through the earlier of (x) termination of this Agreement in accordance with Article XII and (y) the Closing, other than in connection with the transactions contemplated hereby, none of the Company Group, SPAC or Acquisition Entities, shall, and pay 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 Seller or facilitate the efforts of any of its Affiliates any cash and cash equivalents held in any bank account that is Person relating to a Purchased Asset; and possible Alternative Transaction, (iii) settle intercompany balances between enter into, engage in or continue any Purchased Subsidiary, on the one hand, and Seller discussions or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, negotiations with respect to the extent such transfer would hinder or interfere an Alternative Transaction with, or otherwise adversely affectprovide 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, (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, the SPAC or the Acquisition Entities (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 conduct of business) or any class or series of the Businessshare capital or capital stock or other equity interests of the Company Group, the SPAC or the Acquisition Entities in a single transaction or series of transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (JVSPAC Acquisition Corp.)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, (a) Seller shall (i) conduct its business with respect to any Excluded Liability the Product and the Acquired Assets only in the ordinary course, consistent with past practices and reasonable industry standards, (ii) continue to conduct the Litigation Matter in a diligent manner and (iii) maintain all Regulatory Documentation as current and timely, as required by the FDA or Excluded Assetother Governmental or Regulatory Authority, or with Buyer’s prior written and (b) Seller shall not without the consent of the Buyer (which consent shall not to be unreasonably withheld, conditioned delayed or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:conditioned):
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased the Acquired Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (iA) pursuant to existing Contracts, contracts or commitments and (iiB) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset sale of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than inventory in the ordinary course of business consistent with past practice in all material respectspractices;
(fii) except as required by Law, terminate or amend any agreement set forth on Schedule 5.7(b)(i) or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g5.7(b)(ii) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(has contemplated by Section 7.6(c) or enter into any agreement or arrangement that limits or would, if in effect as of the date hereof, otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose be required to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except be set forth on such Schedule other than purchase orders in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)business;
(kiii) make any material change engage in any method of accounting or accounting practice of Seller or any of its Subsidiaries special promotional activities and/or special discounts with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAPProduct;
(liv) (iA) enter into take or agree or commit to take any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business action that would not materially increase the costs amend or terminate make any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence representation and warranty made by Seller under this Agreement on the date hereof or materially increase the benefits provided under inaccurate in any Employee Plan or International Planrespect at, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Righttime prior to, whether as licensor the Closing Date or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, (B) omit or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do omit to take any of the foregoing. For the avoidance of doubt, Seller shall be permitted action necessary to (i) cause each Purchased Subsidiary to dividend, distribute prevent any such representation or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held warranty from being inaccurate in any bank account that is a Purchased Assetrespect at any such time; and or (iiiv) settle intercompany balances between or agree to settle any Purchased Subsidiaryclaim, on the one handsuit, and Seller action or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, proceeding relating to the extent such transfer would hinder Product or interfere with, the Acquired Assets or otherwise adversely affect, file any motions or serve or respond to any discovery requests in the ordinary course conduct of the Business.Litigation Matter; or
Appears in 1 contract
Samples: Asset Purchase Agreement (Par Pharmaceutical Companies, Inc.)
Conduct of the Business. From the date hereof until the Closing Date, except (a) Except as (i) set forth in Section 5.2(a) of the Seller’s Disclosure Schedule 5.01or (ii) as is necessary and commercially reasonable in response to a Contagion Event or Contagion Event Measures, as expressly contemplated by applicable Law or by the Transaction Documents, subject to Seller providing Purchaser with respect to any Excluded Liability or Excluded Asset, or with Buyeradvance notice and obtaining Purchaser’s prior written consent in respect of any such action (unless it is not reasonably practicable under the circumstances to be unreasonably withheldprovide such prior notice and obtain prior consent, conditioned or delayed), in which case the Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts provide notice to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wearPurchaser as soon as reasonably practicable). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the earlier of the Closing DateDate or the termination of this Agreement, except the Seller shall cause the Company, the Bank and the Company’s other Subsidiaries to (1) carry on (and maintain the books of account and records of) their businesses in the ordinary course of business consistent with past practice in accordance with GAAP; (2) use commercially reasonable efforts to preserve their present business organizations and relationships; (3) use commercially reasonable efforts to preserve the rights, franchises, goodwill and relations of their customers, clients and others with whom business relationships exist; and (4) comply in all material respects with all Laws applicable to the conduct of their business.
(b) Except as set forth in Section 5.2(b) of the Seller’s Disclosure Schedule 5.01or to the extent required to effect the Carve-Out Transactions, from the date hereof until the earlier of the Closing Date or the termination of this Agreement, except as (A) otherwise expressly contemplated required by the Transaction Documents this Agreement, (including the RestructuringB) or with Buyer’s prior written consented to in writing in advance by Purchaser (which consent (shall not to be unreasonably withheld, conditioned withheld or delayed), with respect to the Businessor (C) required by applicable Law, Seller shall not not, and shall cause its the Company, the Bank and the Company’s other Subsidiaries (including any Purchased Subsidiaryand, in the case of clause (xii), each of the Carve-Out Entities until the date of the Carve-Out Transaction of such Carve-Out Entity) not to:
(ai) acquire a material amount amend the Bank’s, the Company’s or any of assets from its other Subsidiaries’ Constituent Documents or permit any waiver or grant any consent under their respective Constituent Documents (other Person except than granting authorities or consents to Current Employees in the discharge of their duties in the ordinary course of business);
(ii) (i) merge or consolidate with any other Person, (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets, securities or property, other than (A) acquisitions of securities under the Company’s investment portfolio consistent with the Company’s investment policy in effect as of the date hereof or (B) as may be deemed necessary or advisable by it in the exercise of its rights in connection with an Extension of Credit, or (iii) adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other reorganization;
(iii) issue, transfer, award, grant or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the creation of, any additional Shares or Rights or any additional shares of capital stock of the Company, Bank or any other Company Subsidiary, or any Rights relating to the same, or for which the Company, Bank or any other Company Subsidiary would have any liability, except pursuant to existing Contracts the exercise of stock appreciation rights or stock options or the settlement of equity compensation awards in respect of Seller capital stock in accordance with their terms;
(iv) directly or indirectly adjust, split, combine, redeem, reclassify, subdivide or otherwise amend the terms of, purchase or otherwise acquire, any shares of its stock or debt securities or any Rights related to the same, or declare or pay any dividend or make any other distribution in respect of any of the Company’s capital stock;
(v) pay, discharge, settle or compromise any Action or threatened Action, other than any payments, discharges, settlements or compromises in the ordinary course of business consistent with past practice that (A) does not create negative precedent for other pending or potential proceedings, actions or claims, and (B) does not involve monetary damages or other settlement that would exceed $5,000,000, individually or in the aggregate, in excess of reserves as they existed on September 30, 2020, (C) does not involve injunctive relief or any other non-monetary relief (other than other non-monetary relief in the ordinary course of business consistent with past practice) or (D) relates to the Transactions;
(vi) make any new or renewed Extension of Credit in an amount in excess of $50,000,000 for a commercial real estate loan or a commercial business loan (calculated based on the new or renewed Extension of Credit, without aggregation with other Extensions of Credit outstanding to the applicable borrower), except for such (i) new Extensions of Credit that are currently pending approval as of the date hereof or (ii) otherwise new Extensions of Credit under existing Extensions of Credit issued prior to the date of this Agreement that have not yet expired, and which in each of (i) and (ii) have been made in accordance with the Bank’s lending, underwriting and credit and risk policies and procedures; provided that, promptly following the date hereof the parties shall agree on a process for seeking any approvals required as a result of the foregoing covenant; provided, further, that, at a minimum such process shall include an obligation on the part of Purchaser to consent or provide written notice of objection to any such new or renewed Extension of Credit in writing within two (2) Business Days from the date the Company provided Purchaser with written notice of such new Extension of Credit together with the related credit approval memo and other materials used by the applicable Subsidiary of the Company for internal approval purposes (and any failure to so respond shall be deemed to be consent to the applicable new or renewed Extension of Credit);
(vii) (A) subject any material asset of the Bank, the Company or of any of its other Subsidiaries to a Lien or permit, allow or suffer to exist and Lien in respect thereof (other than in connection with deposits, repurchase agreements, Federal Home Loan Bank advances, bankers acceptances, “treasury tax and loan” accounts established in the ordinary course of business and transactions in “federal funds” and the satisfaction of legal requirements in the exercise of trust powers in the ordinary course of business) other than Permitted Liens; (B) incur any Liability for borrowed money (or guarantee any indebtedness for borrowed money), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person (other than a Company Subsidiary), or make any Extension of Credit or capital contribution to, or investment in, any Person, except (other than with respect to the Carve-Out Entities) in the ordinary course of business consistent with past practice practice; or (C) dispose of any assets, including without limitation existing branches of the Bank, except in all material respects)the ordinary course of business;
(bviii) sell, lease, license or otherwise dispose other than as required by the terms of any Purchased Assets or assets Company Benefit Plan existing as of the Purchased Subsidiaries date hereof, (A) increase the compensation or benefits of any current or former directors, officers, employees or other service providers of the Bank, the Company or its other Subsidiaries, other than Non-Business Assets)the payment of incentive compensation for completed performance periods based upon corporate performance, or the performance of such employee and, if applicable, such employee’s business, in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise each case determined in accordance with the terms of the applicable Company Benefit Plan and in the ordinary course consistent with past practice, (B) enter into any change-in-control, retention, employment, severance, termination or other similar agreement or arrangement with any Person, or increase or commit to increase the change-in-control, severance or termination pay or benefits payable to any Person, (C) pay or award, or commit to pay or award, any bonuses or incentive compensation to any Person other than payments contemplated by clause (A) above, (D) enter into, establish, adopt, terminate or amend any Company Benefit Plan or any plan, program, arrangement, practice or agreement that would be a Company Benefit Plan if it were in existence on the date hereof, except for de minimis administrative amendments that would not increase the benefits provided thereunder, (E) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan, (F) hire any employee classified at or above Grade 22, (G) terminate the employment of any employee at or above Grade 22, other than for cause, or pay any severance, termination pay or benefits to any employee without obtaining an effective comprehensive general release of claims against the Company and its Subsidiaries, (H) take any action to cause any employee who is employed by the Company or any of its Subsidiaries to become a Carve-Out Employee or Other U.S. Employee, or otherwise transfer such employee’s employment to Seller or any of its Affiliates (other than the Company or any of its Subsidiaries), or take any action to cause any Carve-Out Employee or Other U.S. Employee to become a Current Employee, (I) effectuate or provide notice of any action that would require notice or incur any liability or obligation under WARN, (J) enter into, establish or adopt any collective bargaining or similar agreement with any union, works council or other labor organization, or (K) fund or provide any funding for any rabbi trust or similar arrangement;
(cix) create other than the capital expenditures pre-approved by Purchaser in writing, undertake or otherwise incur authorize any Lien capital expenditures not required pursuant to Contracts in effect on any Purchased Asset or any asset the date hereof that are, in the aggregate, in excess of any Purchased Subsidiary$5,000,000 per annum, other than Permitted Liens capital expenditures necessary for safety and soundness purposes;
(x) change any method of financial accounting or accounting practice or policy), except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Governmental Authority responsible for regulating the Company or any of its Subsidiaries;
(xi) except in the ordinary course of business consistent with past practice, sell, assign or transfer any of its material Intellectual Property;
(xii) (A) make, change or revoke any material Tax election, (B) change any material method of Tax accounting, (C) change any material Taxable year or period, (D) enter into any material closing agreement with respect to Taxes, (E) file any material amended Tax Return, (F) settle or compromise any material Tax claim or assessment, (G) surrender any material claim for a refund of Taxes or (H) take any other action outside the Purchased ordinary course of business consistent with past practice that would reasonably be expected to (i) increase by a material amount Purchaser Indemnified Taxes or Taxes imposed on Purchaser (or any of its Subsidiaries, Liens with respect to ) or (ii) reduce by a material amount any Tax attribute of the Non-Business AssetsCompany or any of its Subsidiaries in any Purchaser Tax Period or Purchaser (or any of its Subsidiaries);
(dxiii) incur any capital expendituresmake application for the opening, except for relocation or closing of any, or open, relocate or close any, branch or automated banking facility, other than those contemplated by the capital expenditure budget made available to Buyer prior to pending as of the date of this Agreement and unbudgeted capital expenditures not set forth in Section 5.2(b)(xiii) of the Seller’s Disclosure Schedule, or permit the revocation or surrender by any Subsidiary of the Bank of its certificate of authority to exceed $100,000 individually or $1,000,000 in the aggregatemaintain any such facility, except as may be required by any Governmental Authority;
(exiv) enter into any new line of business or change in any material respect its lending, underwriting, risk and asset liability management and other than banking, operating, and servicing policies, except (i) as required by applicable Law, (ii) as otherwise may be requested by a Governmental Authority or (iii) as necessary for safety and soundness purposes;
(xv) except in connection with actions permitted by Section 5.01(athe ordinary course of business, (A) amend, modify or Section 5.01(d), change any investment practices of the Company or any of its Subsidiaries or (B) make any loans, advances or capital contributions to, or investments in, change in any other Person with material respect to the Businessinvestment portfolio of the Company or any of its Subsidiaries in terms of duration, credit, quality or type of interests, except as required by applicable Law;
(xvi) (A) materially amend, waive, modify or consent to the termination of (1) any Material Contract (or any Contract that would be a Material Contract but for the exception of being filed as exhibits to the Company SEC Reports) of the type specified in Section 3.7(a)(iii), (iv), (x), (xii) or (xiv) or (2) any other Material Contract (or any Contract that would be a Material Contract but for the exception of being filed as exhibits to the Company SEC Reports) except, in the case of this clause (2), in the ordinary course of business consistent with past practice, (B) enter into (x) any new Material Contract (or any Contract that would be a Material Contract but for the exception of being filed as exhibits to the Company SEC Reports) of the type specified in Section 3.7(a)(iii), (iv), (x), (xii) or (xiv) or (y) any other Material Contract except, in the case of this clause (y), in the ordinary course of business consistent with past practice, or (C) enter into any Contract (or any Contract that would be a Material Contract but for the exception of being filed as exhibits to the Company SEC Reports) with any Affiliate or, other than in the ordinary course of business consistent with past practice practice, engage in all material respectsany transaction with any Affiliate (other than solely by and among the Company and the Company Subsidiaries);
(fxvii) except as required by Lawknowingly take any action (including a business acquisition, amend sale or modify in any material respect or terminate any Contract listed in Schedule 3.09other strategic transaction) that, or otherwise waive fail to take any action if such failure, would reasonably be expected to prevent, materially impede or release any material rights, claims or benefits materially delay the consummation of the Business thereunderTransactions, or impair the Seller’s ability to perform its obligations under this Agreement or consummate the Transactions;
(gxviii) enter into knowingly take any Contract (including a hedging action that is intended or swap agreement or similar arrangement) that would be required reasonably likely to be disclosed result in Schedule 3.09 if such Contract were in place as any of the date of this Agreement, conditions set forth in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;Article VI not being satisfied; or
(hxix) authorize, announce an intention, or enter into any agreement or arrangement that limits or otherwise restricts in any material commitment with respect the Business, Buyer or to any of their respective Affiliates the foregoing.
(including c) During the Purchased Subsidiaries after period through the Closing DateDate or earlier termination of this Agreement, except as (A) otherwise expressly contemplated by this the Transaction Documents, (B) consented to in writing in advance by Seller (which consent shall not be unreasonably withheld or delayed), from engaging or competing in any line of business(C) required by applicable Law, in any location or with any Person;Purchaser shall not:
(i) settle, or offer or propose to settle, any material Action involving amend the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method Constituent Documents of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller Purchaser or any of its Subsidiaries with respect in a manner that would impair Purchaser’s ability to perform its obligations under the Business (including Transaction Documents or consummate the Purchased Subsidiaries), except for any such change required by reason of Transactions on a concurrent change in GAAPtimely basis;
(lii) knowingly take any action (iincluding a business acquisition, sale or other strategic transaction) enter into that, or fail to take any Bargaining action if such failure, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee impair Purchaser’s ability to perform its obligations under this Agreement or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under consummate the Severance Plan, grant any new severance or termination pay to any Business Employee or transactions contemplated hereby;
(iii) increase knowingly take any action that is intended or reasonably likely to result in any of the compensation payable to any Business Employee, conditions set forth in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;Article VI not being satisfied; or
(miv) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt authorize, announce an intention, or enter into any plan formal or arrangement that would be considered an Employee Plan informal agreement or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise commitment with respect to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Share Purchase Agreement (PNC Financial Services Group, Inc.)
Conduct of the Business. From (a) Between the date hereof until Execution Date and the Closing Date, except as set forth expressly provided for in Schedule 5.01, as expressly contemplated this Agreement or consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller shall use commercially reasonable efforts to: (i) continue and conduct the Business in the Seller’s (and, if applicable, its Affiliates’) ordinary and usual course of business and in a manner consistent in all material respects with past practices, which shall include using commercially reasonable efforts to maintain a level of Inventory consistent with past practice or as otherwise reasonably necessary to operate the Business (except where such conduct would conflict with Seller’s other obligations under this Agreement or any Other Agreement) and (ii) preserve in all material respects the Business, which shall use its include using commercially reasonable efforts to preserve intact maintain good working relationships with all of its customers, distributors, wholesalers, suppliers, licensors, licensees and any others with whom or with which it has business relations.
(b) Between the present business organizations Execution Date and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated unless otherwise agreed by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the BusinessPurchaser, Seller shall not (and Seller shall cause not permit any of its Subsidiaries (including Affiliates to) do any Purchased Subsidiary) not toof the following without the written consent of Purchaser:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in sell the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, Products other than in the ordinary course of business or in amounts that are inconsistent with sales by Seller (and as applicable, its Affiliates) during Seller’s fiscal quarter ended June 30, 2012;
(ii) terminate or fail to exercise any rights of renewal with respect to any Assigned Contracts set forth on Schedule 1.1(b) of the Seller Disclosure Schedule that by its terms would otherwise expire, except to the extent that such termination or failure to renew is in the ordinary course of business and consistent with past practice in all material respectspractice;
(fiii) except as required by Law, amend settle or modify in compromise any material respect claims of Seller or terminate its Affiliates (to the extent relating to any Contract listed in Schedule 3.09, Product or otherwise waive or release any material rights, claims or benefits of the Business thereunderBusiness);
(giv) enter into any Contract (including a hedging or swap agreement or similar arrangement) relating in any way to the Business, except to the extent that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract is (A) entered into in the ordinary course of business and consistent with past practice and (B) does not involve Liabilities in all material respects and on customary termsexcess of fifty thousand dollars ($50,000) individually or two hundred fifty thousand dollars ($250,000) in the aggregate;
(hv) enter into make any agreement budgeted or arrangement unbudgeted capital expenditure or commitment or addition to property, plant or equipment of Seller in respect of the Business or the Purchased Assets, individually or in the aggregate, in excess of two hundred fifty thousand dollars ($250,000);
(vi) take, or fail to take, any other action that limits could reasonably be expected to result in a breach or otherwise restricts inaccuracy in any of the representations or warranties of Seller contained in this Agreement; SD\906843.15
(vii) (A) incur, create, assume or permit the incurrence, creation or assumption of any Encumbrance (other than Permitted Encumbrances) with respect to the Purchased Assets, (B) dispose of any of the Purchased Assets, except for sales or use of Inventory and Promotional Materials in the ordinary course of business, or (C) waive, release, grant, license or transfer any right, title or interest in or to any Purchased Asset, except in the ordinary course of business;
(viii) revise or modify any Promotional Materials (including any Labeling) except as required by any Governmental Authority or applicable Law;
(ix) commence any litigation related to the Business or the Purchased Assets;
(x) abandon, cease prosecution on, fail to maintain, or fail to pay any fees or expenses in connection with, any Patent or pending patent application relating to the Product Intellectual Property;
(xi) abandon, fail to maintain, or fail to pay any fees or expenses in connection with, any Applicable Permits;
(xii) modify or amend in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any PersonAssigned Contract;
(ixiii) settlemake, change or offer revoke any Tax election; adopt or propose to settlechange an accounting policy, any material Action involving the Business method or relating to the transactions contemplated by this Agreement;
(j) period with respect to Taxes; file any Purchased Subsidiary, make or change any amended Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, Return; enter into any closing agreement, ; settle or compromise any Tax claim, audit claim or assessment, assessment or take any affirmative action to surrender any right to claim a Tax refund, ; or consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes; in each case except in to the ordinary course of business consistent with past practices in all material respects or if extent such action will have no material effect on the Tax Liability of would adversely affect the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting Assets or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesBusiness; or
(pxiv) agree or commit to do take any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held actions specified in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewiththis Section 6.2, except in each case, to as contemplated by this Agreement and the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the BusinessOther Agreements.
Appears in 1 contract
Conduct of the Business. 6.2.1 From the date hereof until the Closing Date, except (i) as set forth in Schedule 5.016.2, (ii) as expressly contemplated by applicable Law this Agreement or by the other Transaction Documents, with respect to any Excluded Liability or Excluded Asset(iii) as required by Law, or (iv) with Buyer’s prior written consent, which consent (shall not to unreasonably be unreasonably withheld, conditioned or delayed), Seller shall, and Seller Parent shall cause Seller to, conduct the Aprinnova Business in the ordinary course consistent with past practice in all material respects and shall use its commercially reasonable efforts to to: (A) preserve intact the present business organizations and goodwill organization of the BusinessAprinnova Business and Purchased Assets; (B) maintain in effect all Assumed Contracts that do not otherwise expire in accordance with their terms; (C) preserve intact and maintain relationships with third parties, preserve the present relationships of the Business with including customers and suppliers of the Aprinnova Business; and maintain (D) maintain, or cause to be maintained, Seller’s current insurance in respect of the propertiesPurchased Assets and Assumed Liabilities, machinery or in the event any such policies are cancelled or otherwise terminated, shall obtain, or cause to be obtained, other substantially comparable insurance policies that have substantially the same terms and equipment related to the Business in good repair and operation condition (subject to normal wear). conditions.
6.2.2 Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as (i) set forth in Schedule 5.016.2, (ii) as expressly contemplated by the Transaction Documents Documents, (including the Restructuringiii) as required by Xxx, or (iv) with Buyer’s prior written consent (consent, which consent, solely in the case of Section 6.2.9, shall not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Parent shall not not, and shall cause its Subsidiaries (including any Purchased Subsidiary) Seller not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) 6.2.2.1 sell, lease, license or otherwise transfer or dispose of any Purchased Assets (excluding the Transferred Trademarks);
6.2.2.2 create or assets of otherwise incur any Encumbrance on the Purchased Subsidiaries Assets (other than Non-Business excluding the Transferred Trademarks);
6.2.2.3 waive any material claims or rights of material value that relate to the Purchased Assets), or in either case, any interests therein, except ;
6.2.2.4 (i) pursuant to existing Contractsamend or modify or terminate any Assumed Contract, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur enter into any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and Contract with respect to the Purchased SubsidiariesAprinnova Business other than ordinary course purchase orders entered into under any Assumed Contract;
6.2.2.5 abandon, Liens with respect cancel, let lapse, transfer, grant Encumbrances to, assign, grant licenses to, allow to be dedicated to the Non-Business Assets;
(d) incur any capital expenditurespublic domain, except for those contemplated by the capital expenditure budget made available fail to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions torenew, or investments infail to prosecute, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend protect or modify in any material respect or terminate any Contract listed in Schedule 3.09defend, or otherwise waive alter, burden, or release impair the value of any material rights, claims or benefits of Transferred Trademark and the Business thereunderLicense Agreement Intellectual Property;
6.2.2.6 consent to the entry of (gor amendment to) any decree, judgment or order by any Governmental Authority, or enter into (or amend) any other agreements with any Governmental Authority or enter into any Contract (including a hedging settlement of any pending or swap agreement threatened Action, or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as enter into any amendment of the date of this Agreementany existing settlement agreement, in each case other than any such Contract entered into in case, that purport to bind or affect the ordinary course of business consistent with past practice in all material respects Purchased Assets from and on customary termsafter the Closing;
(h) 6.2.2.7 enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Aprinnova Business, or that would reasonably be expected, individually or in the aggregate, to limit or restrict Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)its Affiliates, from engaging or competing in any line of business, in any location or with any PersonPerson from and after the Closing;
6.2.2.8 (i) settle, change or offer or propose to settle, revoke any material Tax election with respect to the Purchased Assets or the Aprinnova Business, (ii) file any amended Tax Return or claim a refund of a material amount of Taxes with respect to the Purchased Assets or the Aprinnova Business, (iii) prepare or file any Tax Return with respect to the Purchased Assets or the Aprinnova Business other than on a basis materially consistent with past practice (except as otherwise required by a change in applicable Tax Law), (iv) settle or compromise any material Tax Action involving the Business or relating to the transactions contemplated by this Agreement;
Purchased Assets or the Aprinnova Business, or (jv) seek any Tax ruling from any Governmental Authority with respect to the Purchased Assets or the Aprinnova Business that will be binding on Buyer for any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting taxable period, adopt or change any method of Tax accountingportion thereof, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in beginning after the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);Date; or
(k) 6.2.2.9 make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the manufacturing and production processes and techniques of the Aprinnova Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Lawbusiness;
(m) 6.2.2.10 make any change to pricing of the products sold by the Aprinnova Business, offer any discounts, rebates or other than as required similar reductions with respect to products sold by Law the Aprinnova Business, or make any material change to the manner in which the products sold by the Aprinnova Business are marketed, distributed or sold, in each case but solely to the extent unrelated to any Assumed Contract, outside the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesbusiness; or
(p) 6.2.2.11 agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. (a) Except as provided on the attached Business Conduct ---------------- Schedule, from the date hereof until the Closing Date, the Company shall (i) -------- carry on its and the Subsidiaries' businesses in all material respects in the ordinary course of business and substantially in the same manner as previously conducted, unless Buyer shall have provided prior consent (which consent will not be unreasonably withheld or delayed) and (ii) use all commercially reasonable efforts, consistent with past practice, to (A) preserve the present business operations, organization (including management, employees and the sales force) and goodwill of the Company and each Subsidiary and the Business and (B) preserve the present relationship with Persons having business dealings with the Company and each Subsidiary and the Business; provided that, the foregoing notwithstanding, the Company and any Subsidiary may use all available cash to repay any Indebtedness prior to the Closing.
(b) From the date hereof until the Closing Date, except as set forth in Schedule 5.01otherwise permitted by this Agreement, as expressly contemplated the Business Conduct Schedule, ------------------------- required by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s where Buyer has provided prior written consent (which consent shall not to be unreasonably withheld, conditioned withheld or delayed), Seller the Company shall conduct not, and shall not permit any Subsidiary to, (i) issue, sell or redeem any shares of its or any Subsidiary's capital stock or other securities, (ii) issue, sell, transfer, dispose or redeem any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of its or any Subsidiary's capital stock, (iii) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization or the Business capitalization of any Subsidiary, (iv) amend its or any Subsidiary's certificate of incorporation or bylaws (or equivalent organizational documents), (v) make or become legally committed to any new capital expenditures requiring expenditures following the Closing Date in excess of $250,000 in the aggregate, except for any expenditures pursuant to projects for which work has already been commenced or committed or is otherwise contemplated in the capital expenditure budget, (vi) make any investment in or loan or advance any funds to any Person such that the amount of principal of loan advances owed by such Person shall be in excess of $10,000, (vii) except in the
(A) waive any right of substantial value or cancel or compromise any debt or claim owed to or on behalf of the Company or any Subsidiary in excess of $50,000 in the aggregate; (B) except in the ordinary course of business, enter into, amend, cancel, terminate, relinquish, or waive any Material Contract or any Contract that if so entered into or amended would constitute a Material Contract or (C) voluntarily suffer any loss in excess of $50,000 in the aggregate, (xv)
(A) except as required to comply with Contracts existing on the date hereof and other than pursuant to agreements between the Company and any Subsidiary or agreements between any Subsidiaries, in each case in the ordinary course of business consistent with past practice, pay or settle any liabilities; (B) materially change its practices with respect to the accounting or settlement of or collection or payment of its accounts payable or accounts receivable or accelerate the collection of any accounts receivable or (C) revalue any of its assets, including writing down the value of inventory or writing-off notes or accounts receivable other than as required by applicable generally accepted accounting principles, (xvi) except in the ordinary course of business, (A) acquire any properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the properties or assets of the Company or any Subsidiary for which the aggregate consideration paid or payable in any individual transaction is in excess of $100,000 individually or $250,000 for all such transactions, or acquire a business (or control thereof), business unit or product line of any other Person; (B) enter into a joint venture or partnership or similar arrangement with any other Person; or (C) license, sell, dispose of, purchase or acquire any material Intellectual Property; (xvii) settle any Legal Proceeding that involves a payment in excess of $100,000 individually or $250,000 in the aggregate, (xviii) except for transfers of cash pursuant to normal cash management practices consistent with past practice and shall use its commercially reasonable efforts to preserve intact not in excess of $10,000 individually or $100,000 in the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) aggregate or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sellof business, lease, license permit the Company or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any investments in or loans, advances or capital contributions to, or investments inpay any fees or expenses to, or enter into or modify any other Person Contract or arrangement with, or otherwise incur or accrue any liability to any Seller or any Affiliate of any Seller, (xix) with respect to the BusinessCompany or Subsidiary (or any consolidated, combined, unitary or affiliated group of which any Company or Subsidiary is a member), (A) make, change or revoke any material Tax election, (B) change any of its methods of reporting income or deductions for Tax purposes, (C) compromise any material Tax liability or settle any material Tax claims audits or disputes, or (D) file any amended Tax Return other than in the ordinary course of business on a basis consistent with past practice in all material respects;
or (fxx) except as required by Law, amend authorize or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any furtherance of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From (a) Except as otherwise contemplated by this Agreement or consented to in writing by Buyer, from the date hereof until to the Closing DateClosing, except as set forth in Schedule 5.01Sellers shall, as expressly taking into account any matters that may arise that are attributable to the pendency of the transactions contemplated by applicable Law or by the Transaction Documentsthis Agreement, with respect (i) cause NNGC to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in all material respects only in the ordinary course, consistent with past practices and in material compliance with Applicable Laws and (ii) use their respective reasonable best efforts to preserve the business organization of NNGC intact, keep available the services of employees of NNGC and preserve the existing relations with customers, suppliers and other Persons with which NNGC has significant business dealings, but Sellers and NNGC shall not be required to make any payments or enter into or amend any contractual arrangements, agreements or understandings to satisfy the foregoing obligation unless such payment or other action is required by Applicable Law, by contractual obligation with such third parties or to operate in the ordinary course consistent with past practice and shall practices. Sellers agree to use its commercially reasonable their best efforts to preserve intact keep the present business organizations NNGC Insurance Policies in full force and goodwill of effect through the Business, preserve the present relationships of the Business with customers Closing Date.
(b) From and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from after the date hereof until to the Closing Date, except as otherwise contemplated by this Agreement or as set forth in Schedule 5.01Section 5.1(b) of the Disclosure Letter, as expressly contemplated by Sellers shall not permit NNGC, without the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Buyer (which consent shall not to be unreasonably withheld, conditioned withheld or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant (A) increase the compensation payable to existing Contracts or (ii) otherwise to become payable to or grant any bonuses to any former or present director, officer, employee or consultant, except in the ordinary course of business consistent with past practice practices for persons who are not former or present officers or directors, (in all material respects);B) enter into or amend any employment, severance,
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i1) pursuant to any contract, agreement or other legal obligation of NNGC existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to at the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 Agreement, (2) in the aggregatecase of severance or termination payments, pursuant to the severance policies adopted by NNGC existing at the date of this Agreement, and (3) as required by Applicable Law;
(eii) declare, set aside or pay any dividend on, or make any other than distribution in connection with actions permitted by Section 5.01(arespect of, outstanding Equity Securities of NNGC;
(iii) (A) directly or Section 5.01(dindirectly redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding Equity Securities of NNGC, or (B) effect any reorganization or recapitalization or split, combine or reclassify any of the Equity Securities of NNGC or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, such Equity Securities;
(iv) (A) offer, issue, deliver, grant or sell, or authorize or propose the offering, issuance, delivery, grant or sale (including the grant of any Encumbrances or limitations on voting rights), of any Equity Securities of NNGC or (B) amend or otherwise modify the terms of any outstanding Equity Securities the effect of which will be to make such terms more favorable to the holders thereof;
(A) adopt a plan of complete or partial dissolution or liquidation, (B) acquire or agree to acquire, by merging or consolidating with, purchasing Equity Securities in, or purchasing all or a portion of the assets of, or in any other manner, any business or any Person or otherwise acquire or agree to acquire any assets or property of any other Person (excluding capital expenditures), in each case for consideration in excess of $100,000 or for consideration for all such acquisitions in excess of $500,000 or (C) make any loans, advances or capital contributions to, or investments inin any Person in excess of $100,000 except for (1) loans, advances and capital contributions, or investments pursuant to and in accordance with the terms of any Material Contract or other legal obligation, in each case existing as of the date of this Agreement, (2) contributions in aid of construction made in the ordinary course, consistent with past practices or (3) customary loans and advances to employees in amounts not material to NNGC;
(vi) make or commit to make any capital expenditures other than (A) those set forth in Section 5.1(b) of the Disclosure Letter, (B) pursuant to contracts, forecasts or plans in existence on the date hereof, (C) reasonable expenditures made by NNGC in connection with any emergency or force majeure events affecting NNGC and (D) other capital expenditures not in excess of $500,000, in the aggregate;
(vii) sell, transfer, lease, exchange or otherwise dispose of, whether by merging, consolidating or in any other manner, or grant any Encumbrance with respect to, any other Person with respect to of the Businessmaterial properties or assets of NNGC, other than except for (A) sales of natural gas and condensate in the ordinary course of business consistent with past practice practices and (B) sales or other dispositions of property or assets that in all the aggregate are not material respectsto NNGC; provided, that the sale or other disposition of the data center located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 shall be deemed material and shall require the prior written consent of Buyer;
(fviii) except as required by Law, amend adopt or modify propose any amendments to its certificate of incorporation or bylaws;
(ix) (A) change in any material respect any of its methods or terminate any Contract listed principles of accounting in Schedule 3.09effect at June 30, 2002, except to the extent required to comply with GAAP, (B) make or otherwise waive or release rescind any material rightselection relating to Taxes (other than any election that must be made periodically and is made consistent with past practice), claims (C) settle or benefits compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes or (D) change any of its material methods of reporting income or deductions for United States federal income tax purposes from those employed in the preparation of the Business thereunderUnited States federal income tax returns for the taxable year ended December 31, 2001, except, in each case, as may be required by Applicable Law;
(gx) enter into incur, create, assume, guarantee or otherwise become liable for any Contract (including obligation for borrowed money, purchase money indebtedness or any obligation of any other Person, whether or not evidenced by a hedging or swap agreement note, bond, debenture, guarantee, indemnity or similar arrangementinstrument, except for (A) that would be required to be disclosed refinancings of existing indebtedness, (B) additional indebtedness not exceeding $100,000 in Schedule 3.09 if such Contract were in place as of the date of this Agreementaggregate, in each case other than any such Contract entered into and (C) trade payables incurred in the ordinary course of business consistent with past practice practice; provided that in all material respects and on customary termsthe case of (A) - (C), no additional non-current liabilities shall be incurred, created, assumed, guaranteed or otherwise become the liability or obligation of NNGC;
(hxi) enter into pay, discharge, settle or satisfy any agreement claims, liabilities, obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) prior to the same being due in excess of $500,000 in the aggregate, other than (A) in the ordinary course of business consistent with past practices, (B) pursuant to mandatory terms of any agreement, understanding or arrangement that limits as in effect on the date hereof, or otherwise restricts in (C) NNGC may continue to pursue, prosecute and resolve any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Personpending FERC proceedings;
(ixii) settle, take or offer or propose cause to settle, be taken any material Action involving action that could reasonably be expected to result in any of the Business or relating to the transactions contemplated by this Agreementconditions contained in Section 6.1(a) not being satisfied;
(jA) with respect renew, modify, amend or terminate any Material Contract to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessmentwhich NNGC is a party, or take waive, delay the exercise of, release or assign any affirmative action to surrender any right to claim a Tax refund, material rights or claims thereunder in each case except in the ordinary course of business consistent with past practices practice, (B) enter into or amend in all any material respects manner any contract, agreement or if such action will have no material effect on commitment with any former or present director, officer or employee of NNGC or with any Affiliate or associate (as defined under the Tax Liability Exchange Act) of any of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect foregoing Persons except to the Business (including the Purchased Subsidiariesextent permitted under Section 5.1(b)(i), except for any such change required by reason of a concurrent change in GAAP;
and (l) (iC) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement agreements or other similar agreement contracts that if entered into with on or prior to the date hereof would be required to be disclosed in Section 3.13(a) of the Disclosure Letter;
(xiv) enter into any Business Employee agreements, understandings, contracts or Purchased Subsidiary Employee (commitments with, or engage in any transactions or transfers of assets or liabilities to or from, Sellers or any amendment to any such existing agreement)of their Affiliates other than those allowed by NNGC's natural gas tariff on file with FERC, 26 those expressly contemplated by this Agreement or those listed in Section 3.13(b) of the Disclosure Letter;
(iixv) other than as provided under the Severance Planroutine compliance filings, grant make any new severance filings or termination pay submit any documents or information to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent FERC without prior consultation with past practices in all material respects or as required by Law;Buyer; or
(mxvi) other than as required by Law agree in writing or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise otherwise to commit to undertake take any of the foregoing actions set forth in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 5.1(b).
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except (a) Except as expressly contemplated by this Agreement (including as set forth in Schedule 5.01Section 6.02 of the Sellers Disclosure Schedules), as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (which consent (shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, from the Execution Date until the earlier of the Closing and the termination of this Agreement, as applicable (the “Interim Period”), Seller Sellers shall, with respect to the Acquired Companies, and shall cause each Acquired Company to, conduct the Business its business only in the ordinary course consistent with past practice of business. In addition (and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Dateforegoing), except as expressly contemplated by this Agreement (including as set forth in Schedule 5.01Section 6.02 of the Sellers Disclosure Schedules), as expressly contemplated consented to in writing by the Transaction Documents Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, Sellers shall not, with respect to the BusinessAcquired Companies, Seller shall not and shall cause its Subsidiaries the Acquired Companies not to take, any of the following actions without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) delivered to Sellers’ Representative:
(i) amend the Organizational Documents of any Acquired Company in any respect;
(ii) effect any reorganization (including any Purchased Subsidiary) not to:merger, division, consolidation or conversion), liquidation, dissolution or winding up of any Acquired Company;
(aiii) acquire issue, sell, transfer or otherwise dispose of, pledge or otherwise encumber any Equity Interests of any Acquired Company, or issue or grant any Right with respect to any Acquired Company, in each case, other than pursuant to the terms of any Benefit Plan in connection with issuance of any authorized but unissued equity or equity-based awards or the settlement or exercise of any equity or equity-based awards;
(iv) amend, modify or otherwise supplement any existing Affiliate Contract or enter into any new Affiliate Contract;
(v) (A) make, change or rescind any Tax election, adopt or change any Tax accounting method, make any change to any method of reporting for Tax purposes or any accounting practice or policy from those employed in the preparation of its most recent Tax Return or change any annual accounting period, or settle or compromise any ad valorem, property or similar Tax liability, claim or assessment for Taxes, in each case, except to the extent the aggregate impact of such actions upon Buyer and the Acquired Companies is less than provided that the Acquired Companies shall provide Buyer a material amount copy of assets any settlement or compromise of ad valorem, property or similar Taxes within ten (10) Business Days of such settlement or compromise, or (B) amend any Tax Return, settle or compromise any Tax Proceeding or any Tax liability, claim or assessment for Taxes (other than with respect to any ad valorem, property or similar Taxes), enter any closing agreement or other agreement relating to Taxes with any Governmental Authority, agree to an extension or waiver of the statute of limitations with respect to the assessment, determination or collection of Taxes, surrender any right to claim a Tax refund or other reduction of Taxes, or seek any ruling or agreement from a Governmental Authority with respect to Taxes, or enter into any Tax sharing or similar agreement or assume any Liability for Taxes of any other Person except (i) pursuant whether by Contract or otherwise other than any customary commercial agreement, the primary purpose of which do not related to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respectsTaxes);
(bvi) purchase or acquire (whether by merger, consolidation, combination or otherwise) any business or line of business, any other material assets (including Equity Interests) from any Person (other than as included in Approved Capital Projects);
(vii) sell, assign, transfer, lease, license or otherwise dispose of of, or grant or impose any Purchased Assets or Liens (other than Permitted Liens) on, (A) any assets of the Purchased Subsidiaries Acquired Companies to any Person (other than Non-Business Assets), or any Acquired Company) having a value in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset excess of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date sales of this Agreement transmission capacity or ancillary products or services, and unbudgeted capital expenditures not to exceed $100,000 individually obsolete, damaged, broken or $1,000,000 surplus equipment or assets, in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)each case, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all or (B) any material respectsIntellectual Property owned by the Acquired Companies;
(fviii) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices and other than in all respect of any Benefit Plan or any action that would not reasonably be expected to be material respects and adverse to the applicable Acquired Company, (A) amend, modify or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary otherwise supplement any Material Contract, (B) terminate any Material Contract (other than for Pre-Closing Taxes);
any expiration thereof in accordance with its terms) or (k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (iC) enter into any Bargaining AgreementContract that, employmentif in existence on the Execution Date would have been required to be disclosed in Section 4.10(a) of the Sellers Disclosure Schedules;
(ix) except as permitted under the terms of the applicable Contract or Benefit Plan, deferred and, except, in the event that the Closing Date occurs prior to the applicable date in any calendar year in which ordinary course adjustments are made to increase the annual compensation for the employees of the Acquired Companies consistent with past practices, for the acceleration of such adjustments prior to the Closing to the annual compensation of the employees of the Acquired Companies, (1) materially increase
(x) the salary or other compensation, severanceincluding benefits, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)change in control, (ii) other than as provided under the Severance Plan, grant any new severance or termination pay pay, to which any Business Employee employee, consultant, member of the board of directors (or (iiisimilar governing body) increase the compensation payable to any Business Employeeof an Acquired Company is entitled, in each case other than except in the ordinary course of business consistent with past practices in all business, including annual compensation increases, (2) accelerate the vesting or payment of any material respects compensation or as required by Law;
benefits of any employee, consultant, member of the board of directors (mor similar governing body) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend an Acquired Company under any Benefit Plan, (3) adopt, enter into, amend, or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International material written Benefit Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining except as contemplated by this Agreement or recognize any union or other labor organization except as would not reasonably be expected to be material to the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
Acquired Companies taken as a whole, (n4) adopt, approve, consent to or propose any change in transfer the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license employment of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course employee of the Business consistent with past practice in all material respects, or fail an Acquired Company to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates or (5) enter into, terminate or amend any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the collective bargaining agreement other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.than as required by Law;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conduct of the Business. From Unless otherwise approved in writing by the date hereof until Purchaser, the Company and each Subsidiary will: (i) maintain its legal existence; (ii) use all reasonable efforts to preserve the Business and its business organization intact, retain its licenses, permits, authorizations, franchises and certifications, and preserve the existing contracts, relationships and goodwill of its customers, suppliers, vendors, service providers, personnel and others having business relations with it; (iii) conduct its business prudently and only in the ordinary course (including without limitation the collection of receivables, the payment of payables and capital expenditures, the disposition, acquisition or licensing of assets or properties and the incurrence of Indebtedness); and (iv) use all reasonable efforts to operate in such a manner as to assure that the representations and warranties of the Company set forth in this Agreement will be true and correct as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date. In addition, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or permitted by the Transaction Documentsterms of this Agreement, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s without the prior written consent of Purchaser (which shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct during the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, period from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall not do any of the following and shall not permit its subsidiaries to exceed $100,000 individually do any of the following, except to the extent described on Schedule 4.2 or $1,000,000 otherwise agreed to in writing by the aggregatePurchaser and the Company on or prior to the date hereof:
(a) Waive any equity repurchase rights, accelerate, amend or change the vesting period of any Company Equity Award, or authorize cash payments in exchange for any Company Equity Award or take any such action with regard to any warrant or other right to acquire equity interests of the Company;
(eb) other than Grant any severance, retention or termination pay to any officer or employee except pursuant to written agreements in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions toeffect, or investments inpolicies existing, on the date hereof and as previously disclosed in writing to Purchaser, adopt any new severance or retention plan, or create any retention-related pools of cash, equity interests or other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectspayments;
(fc) except as required by LawTransfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Company Intellectual Property, other than non-exclusive licenses in the ordinary course of business and consistent with past practice;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, equity securities or property) in respect of any equity interest or split, combine or reclassify any equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any equity interests;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any equity interests of the Company or its subsidiaries, except repurchases of unvested equity interests at cost in connection with the termination of the employment relationship with any employee pursuant to equity agreements or purchase agreements in effect on the date hereof;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber any equity interests or any securities convertible into equity interests, or subscriptions, rights, warrants or options to acquire any equity interests or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such equity interests or convertible securities.
(g) Cause, permit or propose any amendments to the Company’s formation documents or LLC Agreement or to the charter or organizational documents of any subsidiary;
(h) (i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; (ii) otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, except in the case of this clause (ii) purchase of inventory and supplies in the ordinary course of business and consistent with past practice; or (iii) enter into any material joint ventures, strategic relationships or alliances or make any material loan or advance to, or investment in, any person, except for loans or capital contributions to a subsidiary or advances of routine business or travel expenses to employees, officers or directors in the ordinary course of business, consistent with past practice;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets which are material, individually or in the aggregate, to the business of the Company;
(j) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than (i) in connection with the financing of ordinary course trade payables consistent with past practice, (ii) pursuant to existing credit facilities in the ordinary course of business, or (iii) the obligation to reimburse employees, officers or directors for reasonable travel and business expenses in the ordinary course of business, consistent with past practice;
(k) Adopt or amend any employee benefit plan or employee equity purchase or employee equity plan, or enter into or amend any employment contract or collective bargaining agreement, make any discretionary cash payments to any director or employee, adopt or implement any new bonus plans, issue any equity compensation awards, enter into any severance or retention plans or arrangements, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, or change in any material respect any management policies or procedures, except pursuant to agreements outstanding on the date hereof that have been previously disclosed in writing in a side letter dated the date hereof referencing this Section 4.1(k) that has been delivered by the Purchaser to the Company;
(l) Make any capital expenditures outside of the ordinary course of business in excess of $10,000 individually or $25,000 in the aggregate;
(m) Modify, amend or terminate any Material Contract listed in Schedule 3.09or waive, release or otherwise waive or release assign any material rights, rights or claims or benefits of the Business thereunder;
(gn) Enter into any development services, licensing, distribution, sales, sales representation or other similar agreement or obligation with respect to any material Intellectual Property or enter into any Contract (including contract of a hedging or swap agreement or similar arrangement) that would be character required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case by Section 2.9 other than any such Contract agreements entered into in the ordinary course of business consistent with past practice in all material respects practices, including pricing and on customary contract terms;
(ho) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or Materially revalue any of their respective Affiliates (including its assets or, except as required by the Purchased Subsidiaries after the Closing Date)Accounting Principles, from engaging make any change in accounting methods, principles or competing in any line of business, in any location or with any Personpractices;
(ip) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreementDischarge, settle or satisfy any Tax disputed claim, audit litigation, arbitration, disputed liability or assessmentother controversy (absolute, accrued, asserted or take unasserted, contingent or otherwise), including any affirmative action to surrender any right to claim a Tax refundliability for Taxes, in each case except other than the discharge or satisfaction in the ordinary course of business consistent with past practices practice, or in all material respects accordance with their terms, of liabilities reflected or if such action will have no material effect on reserved against in the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than Company Balance Sheet in the ordinary course of business consistent with past practices practice, or waive any material benefits of, or agree to modify in all any material respects respect, any confidentiality, standstill or as required by Lawsimilar agreements to which the Company or any of its subsidiaries is a party;
(mq) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan contract, agreement or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake consummation of any of the foregoing transactions contemplated by this Agreement (alone or in combination with any other event) or compliance by the Company with the provisions hereof will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancelation or acceleration of any obligation or to a loss of a benefit under, or result in the future creation of any security interest in any of the properties or enter intoassets of the Company or the Purchaser or any of their respective Subsidiaries under, amend or extend give rise to any Bargaining Agreement increased, additional, accelerated or recognize guaranteed rights or entitlement under, any union provision of such contract, agreement or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesarrangement;
(nr) adopt, approve, consent Cause or permit the lapse or material modification to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiariesinsurance policies;
(os) negotiate or enter into Take any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respectsaction that would cause, or fail to make any filing, pay any fee, or take any other action necessary which failure would reasonably be expected to maintain the ownershipcause, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesthe representations and warranties of the Company contained herein to become untrue or inaccurate; or
(pt) agree Agree in writing or commit otherwise to do take any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (iactions described in Sections 4.2(a) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (iithrough 4.2(s) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessabove.
Appears in 1 contract
Conduct of the Business. From The Company covenants and agrees that prior to the Initial Closing:
(a) Except as expressly contemplated by this Agreement or the Additional Agreements, from the date hereof until the earlier of the Initial Closing Date, except as set forth and the termination of this Agreement in Schedule 5.01, as expressly contemplated by applicable Law or by accordance with its terms (the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed“Interim Period”), Seller it shall (I) conduct the Business its business only in the ordinary course (including the payment of accounts payable and the collection of accounts receivable), consistent with past practice practices, (II) duly and shall timely file all material 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 Laws and Orders in all material respects, and (IV) use its commercially reasonable efforts to preserve intact the present its business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)other third parties. Without limiting the generality of the foregoing foregoing, and subject to except as expressly contemplated by this Agreement or the Additional Agreements, or as required by applicable Law, from the date hereof until the earlier of the Initial Closing Dateand the termination of this Agreement in accordance with its terms, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyerwithout Purchaser’s prior written consent (which shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), with respect to the BusinessCompany shall not, Seller or shall not and shall cause permit its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts amend, modify or supplement its certificate 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 any Material Contract, except in the ordinary course of business;
(iii) other than in the ordinary course of business consistent with past practice practice, modify, amend or enter into any contract, agreement, lease, license or commitment, including for capital expenditures, that extends for a term of one year or more and obligates the payment by the Company of more than $500,000 (in all material respectsindividually);
(biv) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests thereinCompany Group’s material assets, except (i) pursuant to existing Contracts, contracts or (ii) otherwise in the ordinary course consistent with past practice;
(c) create commitments disclosed herein or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectspractices;
(fv) except as required by Lawsell, amend lease, license or modify in otherwise dispose of any material respect Company Owned IP, except pursuant to existing contracts or terminate any Contract listed in Schedule 3.09, commitments disclosed to the Purchaser or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary termspractices;
(hvi) enter into any agreement or arrangement that limits or otherwise restricts in permit any material respect the BusinessRegistered Owned IP to go abandoned or expire for failure to make an annuity or maintenance fee payment, Buyer or file any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging necessary paperwork or competing in any line of business, in any location or with any Personaction to maintain such rights;
(ivii) settle(A) pay, declare or offer promise to pay any dividends, distributions or propose other amounts with respect to settleits capital stock or other equity securities; (B) pay, declare or promise to pay any material Action involving the Business other amount to any stockholder or relating to the transactions other equity holder in its capacity as such; and (C) except as contemplated hereby or by this any Additional Agreement;
(j) , amend any term, right or obligation with respect to any Purchased Subsidiaryoutstanding shares of its capital stock or other equity securities;
(viii) (A) Make any loan, make advance or change capital contribution to any Tax electionPerson; (B) incur any Indebtedness including drawings under the lines of credit, change if any, other than intercompany Indebtedness; or (C) except as set forth herein, repay or satisfy any annual Tax accounting periodIndebtedness, adopt other than repayment of Indebtedness in accordance with the terms thereof;
(ix) suffer or change incur any method of Tax accountingLien, enter into any closing agreementexcept for Permitted Liens on the Company Group’s assets, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)practices;
(kx) make delay, accelerate or cancel, or waive any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries right with respect to, any receivables or Indebtedness owed to the Business Company Group or write off or make reserves against the same (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employeethan, in each the case other than of the Company, in the ordinary course of business consistent with past practices practices);
(xi) 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 all material respects any Person or be acquired by any Person;
(xii) terminate or allow to lapse any insurance policy protecting any of the Company Group’s as applicable, assets, unless simultaneously with such termination or lapse or as soon as practicable, a replacement policy having comparable deductions and providing coverage equal or greater than the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;
(xiii) adopt any severance, retention or other employee plan or fail to continue to make timely contributions to each Plan in accordance with the terms thereof;
(xiv) 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;
(xv) except as required by IND AS, U.S. GAAP, or Applicable Law, make any material change in its accounting principles, methods or practices or write down the value of its assets;
(mxvi) change its principal place of business or jurisdiction of organization;
(xvii) 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 as otherwise contemplated herein or in any Additional Agreement;
(xviii) (A) make, change or revoke any Tax election; (B) change any method of accounting; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes of the Company Group; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes of the Company Group; or (E) surrender or forfeit any right to claim a Tax refund;
(xix) 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;
(xx) other than as required by Law a Plan or in the ordinary course of business that would not materially consistent with past practices, (A) increase or change the costs compensation or benefits of any employee or service provider of the Company Group, (B) accelerate the vesting or payment of any compensation or benefits of any employee or service provider of the Company Group, (C) enter into, amend or terminate any Employee Plan (or International Plan or adopt or enter into any plan plan, program, agreement or arrangement that would be considered an Employee Plan or International a Plan if it were in existence effect on the date hereof hereof) or materially increase the grant, amend or terminate any awards thereunder, (D) fund any payments or benefits that are payable or to be provided under any Employee Plan or International Plan, (E) make any loan to any present or promise to commit to undertake any former employee or other individual service provider of the foregoing Company Group, other than advancement of expenses in the future ordinary course of business consistent with past practices, or (F) enter into, amend or extend terminate any Bargaining Agreement collective bargaining agreement or recognize any other agreement with a labor union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeesorganization;
(nxxi) adopt, approve, consent fail to or propose duly observe and conform to any change applicable Laws and Orders in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(pxxii) agree or commit to do any of the foregoing. For .
(b) Neither party shall (i) take or agree to take any action that would be reasonably likely 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 avoidance of doubtClosing Date or (ii) omit to take, Seller or agree to omit to take, any action necessary to prevent any such representation or warranty from being inaccurate or misleading in any respect at any such time.
(c) Notwithstanding the foregoing, the Company and Purchaser and their respective Subsidiaries shall be permitted to (i) cause each Purchased Subsidiary take any and all actions required to dividendcomply in all material respects with the quarantine, distribute or otherwise pay to Seller “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any of its Affiliates other Law, directive, guidelines or recommendations by any or all of Authority (including the cash Centers for Disease Control and cash equivalents of such Purchased Subsidiary; (iiPrevention and the World Health Organization) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases each case in connection therewithwith, except related to or in each caseresponse to COVID-19, including the CARES Act (to the extent applicable to such transfer would hinder party) or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessany changes thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Media Acquisition Corp.)
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Sellers shall conduct the Business in the ordinary course of business consistent with past practice and shall use its their commercially reasonable reasonably efforts to preserve intact the present business organizations Business’ relationships and goodwill of the Businesswith third parties with whom it has business relations, preserve the present relationships of the Business with including but not limited to its employees, licensors, customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)suppliers. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in disclosed on Schedule 5.014.10, or as expressly contemplated approved by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent of Purchaser (such approval not to be unreasonably withheld, conditioned withheld or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not toSellers will:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) not sell, lease, license or otherwise dispose of any Purchased interest in the Acquired Assets or assets of the Purchased Subsidiaries (other than Non-Business Assetsobsolete Inventory (it being understood, however, that obsolete Inventory shall in no event be exchanged for trade credits)), or except sales of Inventory and disposal of certain of the assets set forth in either case, any interests therein, except (iSection 1.2(a)(iv) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respectspractice;
(fb) except as required by Law, not amend or modify in any material respect respect, renew (other than automatically) or terminate any of the Assumed Contracts;
(c) not encumber, abandon, permit to lapse or be cancelled or relinquish any license or sublicense that is an Assumed Contract listed (other than an expiration in Schedule 3.09accordance with its terms), or otherwise waive convey rights under or release any material rights, claims or benefits of with respect to the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case Intellectual Property other than any such Contract entered into in licenses contained in agreements with advertisers, distributors or suppliers in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hd) enter into not mortgage, pledge or grant any agreement security interest in any of the Acquired Assets in connection with the borrowing of money or arrangement that limits for the deferred purchase of any property, or otherwise restricts in any material respect voluntarily permit the Business, Buyer or imposition of a Lien (other than a Permitted Lien) on any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any PersonAcquired Assets;
(ie) settle, not make any change in their accounting methods or offer or propose practices with respect to settle, any material Action involving the Business (including without limitation any method of accounting for Inventory or relating to the transactions contemplated by this AgreementAccounts Receivable);
(jf) continue to meet the material contractual obligations of, and pay material obligations relating to, the Business as they mature in the ordinary course of business consistent with respect to any Purchased Subsidiarypast practice;
(g) not initiate a Product promotion, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)practice;
(kh) make not obtain or acquire any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries trade credits with respect to the Business (including the Purchased Subsidiaries)Business, except whether in exchange for any such change required by reason of a concurrent change in GAAPobsolete Inventory or otherwise;
(l) (i) enter into not change in any Bargaining Agreementmaterial respect the policies or practices with regard to the collection of accounts receivable or the payment of accounts payable, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than except in the ordinary course of business consistent with past practices in all material respects or as required by Lawpractice;
(mj) other than as required by Law not increase sale or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any shipment of the foregoing Products to business customers in excess of customary shipments for the future same period during the preceding year, except to the extent such shipments are made in connection with the launch of a newly repackaged Product, new merchandising activities or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;increased consumption trends; and
(nk) adopt, approve, consent to not agree in writing or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit otherwise to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Church & Dwight Co Inc /De/)
Conduct of the Business. From (a) During the date hereof until Interim Period, the Closing DateVendors shall, except as set forth otherwise provided in Schedule 5.01this Agreement or required by Applicable Laws, as expressly contemplated by applicable Law or by cause the Transaction DocumentsCompany to conduct the Business in the ordinary course, consistent with respect to any Excluded Liability or Excluded Assetpast practice unless the Purchaser otherwise consents, or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly unless otherwise contemplated by the Transaction Documents provisions of this Agreement or required by Applicable Laws, the Vendors shall cause the Company to: carry on the Business in material compliance with Applicable Laws and perform its obligations under all Contracts, Orders and Licenses; preserve the Business and the goodwill of suppliers, customers and others having business relations with the Company; use commercially reasonably efforts to retain the services of the present executives, Employees, consultants and advisors of or to the Company; retain possession and control of the assets of the Company and preserve the confidentiality of any confidential or proprietary information of the Business or the Company; maintain in full force and effect all Contracts, maintain in full force and effect the Company’s rights in the Company's Intellectual and Industrial Property; maintain in full force and effect all policies of insurance maintained by or for the benefit of the Company and give all notices and present claims under those policies in a timely fashion; and pay, satisfy and discharge the Company’s obligations and liabilities in the ordinary course of the Business, consistent with past practice.
(including b) During the Restructuring) Interim Period, the Vendors shall ensure that the Company does not (unless otherwise contemplated by the provisions of this Agreement or with Buyer’s required by Applicable Law), without the prior written consent (of the Purchaser, which consent shall not to be unreasonably withheld, conditioned or delayed), : become a party to or bound by any new material agreement or arrangement with any Interested Person or amend or concur in the material amendment of any such existing agreement or arrangement or make or authorize any payment to or for the benefit of any Interested Person at a rate greater than as described in Subsection 3.1.36 other than as contemplated by an existing policy or practice as to periodic review of Employee Benefit Plans; make any capital expenditure or authorize any new capital expenditures in excess of $50,000 in the aggregate; become a party to or bound by any new agreement or arrangement with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries Employee Benefits (other than Non-Business Assets), an employment or in either case, any interests therein, except (ipersonal services agreement or arrangement which is terminable by the Company without liability on no more than 30 days' notice) pursuant to existing Contracts, or (ii) otherwise amend or concur in the ordinary course consistent with past practice;
(c) create amendment of or otherwise incur increase any Lien on payment or obligation under any Purchased Asset existing agreement or any asset of any Purchased Subsidiary, other than Permitted Liens and arrangement with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those Employee Benefit Plans other than as contemplated by an existing policy or practice as to periodic review of Employee Benefit Plans; take any step to dissolve, wind-up or otherwise affect its continuing corporate existence or amalgamate or merge with any Person or amend the capital expenditure budget made available Company's articles or by-laws; make any loan to Buyer prior or investment in any other Person; become a party to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 bound by any new Debt Instrument or amend or concur in the aggregate;
amendment of or prepay or vary the terms of any indebtedness or other obligation under any existing Debt Instrument; become a party to or bound by any Guarantee or amend or concur in the amendment of any existing Guarantee; except as required under the terms of an Employee Benefit Plan or for the Permitted Distribution, declare or pay any dividend or other distribution (ewhether out of capital or surplus or otherwise) other than in connection with actions permitted by Section 5.01(a) on any of its outstanding securities or Section 5.01(d)redeem, make purchase or otherwise acquire any loansof its outstanding securities; purchase, advances sell or capital contributions to, lease any property or investments in, any other Person with respect to the Business, assets other than in the ordinary course of business consistent with past practice in all material respects;
(f) business; cancel, waive or vary the terms of any debt owing to or any claim or right of the Company; except as required by Lawunder the terms of an Employee Benefit Plan, amend issue any units, membership interests, shares or modify other securities or make any change in the number or class of or rights attached to any material respect issued or terminate any Contract listed in Schedule 3.09unissued units, membership interests, or otherwise waive shares or release grant, issue or make any material rightsoption, claims warrant, subscription, convertible security or benefits of the Business thereunder;
(g) enter into other right or commitment to purchase or acquire any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreementunits, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settlemembership interests, or offer other securities; incur any obligation or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case liability except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on make, authorize or accept any early payment of any existing obligation or liability; create or permit the Tax Liability creation of the Purchased Subsidiary (any new Lien other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or Permitted Liens on any of its Subsidiaries with respect to property or assets or amend or concur in the Business (including the Purchased Subsidiaries), except for any such change required by reason amendment of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement)Lien; terminate, (ii) other than as provided under the Severance Plantransfer or modify, or grant any new severance rights under, any Intellectual and Industrial Property Rights; or termination pay to any Business Employee change or (iii) increase alter the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects physical content or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license character of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course inventories of the Business consistent with past practice so as to materially affect the nature of the Business or materially and adversely change the value of those inventories from that reflected in all material respectsthe Financial Statements, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit become bound to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From (a) During the period from the date hereof of this Agreement and continuing until and through the earlier of the termination of this Agreement in accordance with Section 8 and the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by (the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed“Pre-Closing Period”), Seller shall conduct the Business in the ordinary course consistent with past practice and shall cause its Affiliates to (except to the extent expressly contemplated by this Agreement or as consented to in writing by Purchaser Guarantor) use its commercially reasonable efforts to: (i) carry on the Business in the usual regular and ordinary course in substantially the same manner as heretofore conducted, including complying with all material applicable Laws and complying with the Rehovot Facility Leases, and to pay or perform other obligations when due, (ii) preserve intact the present business organizations and goodwill Business, keep available the services of the BusinessIdentified Service Providers, keep and preserve the present Cell Banks, the Cell Lines and the Acquired Assets and preserve the relationships of Seller and its Affiliates with landlords, customers, suppliers, distributors, licensors, licensees, and others having dealings with Seller and its Affiliates that are necessary for the operations of the Business with customers and suppliers (iii) promptly repair, restore or replace any Tangible Property constituting Acquired Assets that are destroyed or damaged and maintain promptly notify the properties, machinery and equipment related landlord under each of the Rehovot Facility Leases to remediate any deficiencies discovered at the Business in good repair and operation condition Rehovot Facility.
(subject to normal wear). b) Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Dateforegoing, except as set forth in Schedule 5.01, as expressly contemplated by this Agreement, during the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the BusinessPre-Closing Period, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) Affiliates not to:, and shall not permit any of the following, without the prior written consent of Purchaser Guarantor (such consent not to be unreasonably withheld, delayed or conditioned):
(a) acquire a material amount of assets from any other Person except (i) pursuant Sell, lease, license or otherwise transfer, or agree or commit to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of transfer any Purchased interest in the Acquired Assets or assets the Business or any interest in or right relating to any such interest, or dispose any of the Purchased Subsidiaries Inventory (other than Nonin the ordinary course of business);
(ii) permit, or agree, commit or offer (in writing or otherwise) to permit, any interest in the Acquired Assets or the Business to become subject, directly or indirectly, to any Lien;
(iii) terminate the employment of any Identified Service Provider (other than for good reason);
(iv) amend the terms of, or enter in to, any Contract with any labor union, works council, or similar organization;
(v) amend the terms of, or enter in to, any employment agreement, consulting agreement, or independent contractor agreement; grant, agree to grant, pay or modify the terms of any existing discretionary bonus, retention award, change in control award, special remuneration or special noncash benefit unless such bonus, award, etc. would be the responsibility of Seller and not Purchaser, and would not obligate Purchaser to make any payments on a going-Business Assetsforward basis; or (other than annual increases to annual base salary and wages in the ordinary course of business consistent with past practice), materially increase the benefits, salaries, wage rates or in either caseother annual compensation, of any interests therein, except Business Service Provider;
(vi) (i) pursuant to existing Contracts, terminate (other than by expiration) or amend or modify (other than by automatic extension or renewal if deemed an amendment or modification of any such Contract) in any respect any Material Contract or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur enter into any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the BusinessContract that may constitute an Acquired Contract at Closing, other than in the ordinary course of business consistent with past practice and does not result in all material respectsLiability to be assumed by Purchaser (or its Affiliates) following Closing;
(fvii) except as required by Law, amend or modify in commence any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of Action relating to the Business thereunderor the Acquired Assets or settle any Action relating to the Business or the Acquired Assets;
(gviii) enter into any Contract (including a hedging transaction or swap agreement take any other action in the conduct of or similar arrangement) that would be required otherwise relating to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in Business or the Acquired Assets outside the ordinary course of business consistent with Seller’s past practice in all material respects and practices that would have a Material Adverse Effect on customary termsthe Business or the Acquired Assets;
(hix) enter into any agreement adopt a plan of complete or arrangement that limits or otherwise restricts in any material respect the Businesspartial liquidation, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date)dissolution, from engaging or competing in any line of businessrestructuring, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement recapitalization or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Lawreorganization;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. From the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall conduct the Business in the ordinary course consistent with past practice of business and shall use its commercially reasonable efforts to preserve intact (i) maintain satisfactory relationships with the present customers, suppliers, and others having material business organizations relationships with the Business, (ii) maintain in effect all material foreign, federal, state and goodwill local licenses, permits, consents, approvals and authorizations of the Business, preserve and (iii) keep available the present relationships services of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear)Transferring Employees. Without limiting the generality of the foregoing and subject to applicable Lawforegoing, from the date hereof until the Closing Date, except as expressly set forth in Schedule 5.01, as expressly or contemplated by this Agreement or the Transaction Documents Ancillary Agreements, disclosed on Section 5.01 of the Seller Disclosure Schedule, or approved by Buyer (including the Restructuring) or with Buyer’s prior written which consent (will not to be unreasonably withheld, conditioned or delayed), Seller will not, solely with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for (i) those contemplated by the capital expenditure expenditures budget made available previously provided to Buyer prior to the date of this Agreement hereof and (ii) any unbudgeted capital expenditures not to exceed $100,000 50,000 individually or $1,000,000 100,000 in the aggregate;
(eb) other than in connection with actions permitted acquire (by Section 5.01(a) merger, consolidation, acquisition of stock or Section 5.01(dassets or otherwise), make any loans, advances directly or capital contributions to, or investments inindirectly, any other Person with respect to assets, securities, properties, interests or businesses for the conduct of the Business, other than in the ordinary course of business consistent with past practice in all material respectsbusiness;
(fc) except as required by Lawsell, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09lease, transfer, or otherwise waive dispose of any Purchased Assets or release incur or suffer any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case Liens other than Permitted Liens with respect to any such Contract entered into Purchased Assets, except (i) pursuant to existing contracts or commitments or (ii) otherwise in the ordinary course of business consistent with past practice practice;
(d) cancel any material debts or claims or amend, terminate or waive any material rights under any Material Contract;
(e) accelerate, terminate, materially modify or cancel any Material Contract;
(f) incur, assume or guarantee any indebtedness for borrowed money in all material respects connection with the Business except unsecured current obligations and on customary termsliabilities incurred in the ordinary course of business consistent with past practice;
(g) adopt, amend, modify or terminate any Employee Benefit Plan except as required by Applicable Law, or accelerate the payment or vesting of amounts or benefits or amounts payable or to become payable under any Employee Benefit Plan, or fail to make any required contribution to any Employee Benefit Plan;
(h) grant any increase in the compensation or benefits of any current or former director, manager, officer, employee, independent contractor or other service provider of Seller or any of its Subsidiaries outside the ordinary course of business, or extend an offer of employment to, or hire, any employee or officer providing annual compensation in excess of $100,000 or terminate any such employee or officer;
(i) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer conduct of the Business or any of their respective Affiliates (including the Purchased Subsidiaries successor thereto or that, after the Closing Date), would reasonably be expected to limit or restrict in any material respect the Company from engaging or competing in any line of business, in any location or with any Person;
(ij) enter into any Contract that would be a Material Contract, other than purchase orders executed in connection with currently effective Contracts;
(k) change the methods of accounting or accounting practice by Seller, except as required by changes in GAAP as agreed to by its independent public accountants;
(l) materially change its cash management policies, practices and procedures with respect to collection of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(m) settle, or offer or propose to settle, (i) any material Action litigation, investigation, arbitration, proceeding or other claim involving or against the Business or relating (ii) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employeeshereby;
(n) adoptmake, approverevoke or amend any material Tax election, consent to execute any waiver or propose extend any change in the respective Organizational Documents restrictions on assessment or collection of Seller or any of the Purchased Subsidiaries;
(o) negotiate Tax, or enter into or make any license of amendment to any material Business Intellectual Property Rightagreement or settlement with any Tax authority, whether as licensor in each case, if such action would adversely impact the Company, the Purchased Assets or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain after the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its SubsidiariesClosing; or
(po) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Conduct of the Business. (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 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’ failure to take any action prohibited by Section 7.01(b) (after taking into account the 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 Date, except (v) as set forth on the Conduct of Business Schedule, (w) as otherwise explicitly permitted by this Agreement, (x) as consented to in Schedule 5.01, as expressly contemplated by applicable Law or writing by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Purchaser (which consent (will not to be unreasonably withheld, conditioned or delayed), Seller shall conduct or (y) as required by Law to be implemented during the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from period between the date hereof until and the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller Company shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or enter into any contract outside of the ordinary course of business;
(ii) otherwise 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 consistent with past practice 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 all material respectscash);
(bvi) 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) make any redemption of, purchase or otherwise acquire any units or shares of its or its Subsidiaries’ equity securities;
(xi) sell, leaseassign, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets)transfer, or in either caselicense, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Businesslease or, other than in the ordinary course of business consistent with past practice in all business, subject to any Lien other than a Permitted Lien, any of its material respectsassets;
(fxii) except as required by Law, amend acquire or modify agree to acquire in any manner (whether by merger or consolidation, the purchase of an equity interest in or a material respect portion of the assets of or terminate otherwise) any Contract listed in Schedule 3.09business or any corporation, partnership, association or other business organization or division thereof or any other Person, or otherwise waive or release acquire any material rights, claims or benefits of the Business thereunderassets;
(gxiii) enter into make any Contract capital expenditures in excess of $500,000 in the aggregate or commitments therefor, except (including a hedging or swap agreement or similar arrangementA) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice or (B) for such capital expenditures or commitments therefor that are reflected in all material respects and on customary terms;
(h) enter into any agreement the Company’s or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating its Subsidiaries’ current budget as provided to the transactions contemplated by Purchaser prior to the date of this Agreement;
(jxiv) commence or settle any Proceeding requiring or reasonably expected to require a cash payment in excess of $500,000, or (B) commence or settle any Proceeding with respect any Governmental Entity or that results in, or could reasonably be expected to result in, the imposition of any Purchased Subsidiarymaterial restrictions upon its or its Subsidiaries’ business;
(xv) except as required by GAAP to be implemented during the period between the date of this Agreement and the Closing Date, (A) change any of its accounting principles, methods or practices (including principles, methods and practices relating to the estimation of reserves and other liabilities) or (B) write up, write down or write off the book value of any material asset;
(xvi) make or change any material Tax election, 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 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, audit or assessment, assessment or take any affirmative action to surrender any right to claim a Tax refund, offset or other reduction in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary liability;
(xvii) incur any Indebtedness (other than for Pre-Closing Taxespursuant to the Existing Credit Agreement);
(k) , guarantee the Indebtedness of any other Person or make any material change in any method of accounting loan or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment advance to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business EmployeePerson, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Lawbusiness;
(mxviii) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend in any material respect, or extend terminate any Bargaining Agreement or recognize any union or other labor organization as contract set forth on the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller Contracts Schedule or any of contract that would be required to be set forth on the Purchased Subsidiaries;
(o) negotiate or enter Contracts Schedule if entered into any license of any material Business Intellectual Property Right, whether as licensor or as licenseeprior to the date hereof, other than in the ordinary course of business;
(xix) enter into or amend any Affiliate Agreement;
(xx) effect or publicly announce any intention to effect, any temporary or permanent change in the Business 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 practice in all material respectspractices (taking into account the time of year such temporary or permanent changes were initiated and the length of any such temporary change);
(xxi) make any loan to, or fail to make any filing, pay any fee, or take enter into any other action necessary to maintain the ownershipmaterial transaction with, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiariesdirectors, officers, or employees outside the ordinary course of business except for payments of cash bonuses or pursuant to any agreement set forth on the Contracts Schedule or the Affiliated Transactions Schedule; or
(pxxii) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Conduct of the Business. (a) From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 8.01, except as otherwise provided for by this Agreement (including the Disclosure Schedules), as necessary to comply with any applicable Laws or Orders, or consented to in writing by Parent (which consent will not be unreasonably withheld, delayed or conditioned), the Company will conduct its business and the businesses of its Subsidiaries in the ordinary course of business consistent with past practice, using its commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (iii) maintain reasonably satisfactory relationships with its directors, officers and senior executives, (iv) maintain reasonably satisfactory relationships with its customers, lenders, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and payment of accounts payable) and the amount and incurrence of its deferred revenues in the ordinary course of business consistent with past practice, and (vi) continue to make capital expenditures in the ordinary course of business and consistent with past practice. For the avoidance of doubt, nothing in this Agreement will limit the ability of the Company and the Company's board of directors to accelerate the vesting of any Restricted Shares or Options prior to the Closing Date.
(b) From the date hereof until the Closing Date, except as otherwise provided for by this Agreement, as set forth in on Schedule 5.016.01(b), as expressly contemplated by necessary to comply with any applicable Law Laws or by the Transaction Documents, with respect to any Excluded Liability or Excluded AssetOrders, or with Buyer’s prior written consented to in writing by Parent (which consent (will not to be unreasonably withheld, conditioned delayed or delayedconditioned), Seller shall conduct the Business in the ordinary course consistent with past practice Company will not, and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill will not permit any of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including to, take any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in action which, if taken after the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens Balance Sheet Date and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d)Agreement, make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in on Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Business4.08.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof Effective Date until the Closing Date, (1) Target, Holdings and the Transferred Partnerships shall carry on the Business in the ordinary course of business and substantially in the same manner as currently conducted; provided that, the foregoing notwithstanding, Target, Holdings and the Transferred Partnerships may (but are not obligated to) use all available cash currently held by said Parties or otherwise derived from the operations of its business consistent with this Section 7.01(a) to repay any Indebtedness prior to the Closing and (2) B&S LP shall operate the B&S Real Property in the ordinary course of business and substantially in the same manner as currently operated.
(b) From the Effective Date until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated otherwise provided for by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Assetthis Agreement, or with consented to in writing by Buyer’s , the Seller Parties shall not, and shall not permit the Transferred Partnerships to, take any action which, if taken after the date of the Latest Balance Sheet, and prior written consent (not to the Effective Date, would have been required to be unreasonably withheld, conditioned or delayed), Seller shall conduct disclosed on Schedule 4.07.
(c) From the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof Effective Date until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by without the Transaction Documents consent of Buyer (including the Restructuring) or with Buyer’s prior written which consent (shall not to be unreasonably withheld, conditioned delayed or delayed), with respect to conditioned) each of the Business, Seller Parties and the Transferred Partnerships shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except fail to (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in timely file all material respects);
(b) sellTax Returns required to be filed by it, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or and all such Tax Returns shall be prepared in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course a manner consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries with respect to the Business (including the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;
(l) (i) enter into any Bargaining Agreement, employment, deferred compensation, severance, retirement or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business consistent with past practice in all material respects, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoing. For the avoidance of doubt, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, timely pay all material Taxes due and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Assetpayable; and (iii) settle intercompany balances between promptly notify Buyer of any Purchased Subsidiarymaterial income, on franchise or similar (or other material) Tax claim, investigation or audit pending against or with respect to each of Target and the one handTransferred Partnerships in respect of any material Tax matters, including material Tax liabilities and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessmaterial Tax refund claims.
Appears in 1 contract
Conduct of the Business. From the date hereof of this Agreement until the earlier to occur of the Closing Dateand the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or expressly contemplated by this Agreement, as set forth in Schedule 5.01Section 5.1 of the Disclosure Schedule, as expressly contemplated consented to in writing by applicable Law or by the Transaction Documents, with respect to any Excluded Liability or Excluded Asset, or with Buyer’s prior written Buyer (such consent (not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, Seller shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries to conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or (ii) otherwise in the ordinary course consistent with past practice;
(c) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expenditures, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract entered into in the ordinary course of business consistent with past practice in all material respects and on customary terms;
(h) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Business, Buyer or any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any Person;
(i) settle, or offer or propose to settle, any material Action involving the Business or relating to the transactions contemplated by this Agreement;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle any Tax claim, audit or assessment, or take any affirmative action to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices and use commercially reasonable efforts to cause each of the Station Sharing Companies to conduct the Business in the ordinary course of business consistent with past practices, (ii) use reasonable best efforts to maintain the Station Licenses and their respective rights thereunder, (iii) use reasonable best efforts to preserve intact in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes);
(k) make any material change in any method of accounting or accounting practice of Seller or any of its Subsidiaries respects, with respect to the Business, its current business organization, ongoing businesses and significant relationships with third parties, and (iv) use reasonable best efforts to preserve the relationships of the Business with its employees in accordance with the ordinary course of business and consistent with past practice. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement in accordance with Article IX, except as otherwise permitted or contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Schedule, as consented to in writing by Buyer (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Seller shall not, and shall cause its Subsidiaries not to, and shall use reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Subsidiaries not to, in each case, solely in respect of the Business, the Stations or the Purchased Subsidiaries), except for any such change required by reason of a concurrent change in GAAP;Assets:
(la) sell, assign, license, lease, transfer, abandon or create any Lien (other than any Permitted Lien) on, or otherwise dispose of, any of the Purchased Assets, other than (i) enter into any Bargaining Agreementsuch sales, employmentassignments, deferred compensationlicenses, severanceleases, retirement transfers, abandonments, Liens or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment dispositions that are in the ordinary course of business and are not material to any such existing agreement)the Business, taken as a whole, (ii) other than as provided under listed on Section 5.1(a)(ii) of the Severance Plan, grant any new severance or termination pay to any Business Employee Disclosure Schedule or (iii) increase the compensation payable in order to any Business Employeecomply with and in accordance with, in each case Section 5.2;
(b) other than (i) in the ordinary course of business consistent with past practices (including renewals consistent with the terms thereof), (ii) for those Contracts that can be cancelled by Seller or Tribune, as applicable, or any of their respective Subsidiaries without cause (and without penalty) on less than ninety (90) days’ notice or (iii) as permitted by Section 5.1(c)(i), (A) amend or modify in all any material respects respect or terminate (excluding (1) terminations or renewals upon expiration of the term thereof in accordance with the terms thereof and (2) renewals for a term of one (1) year or less) any Station Agreement, (B) enter into any Contract that would constitute a Station Agreement if in effect on the date hereof (excluding Contracts with a term of one (1) year or less) or (C) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Station Agreement; provided, that in no event shall Seller or Tribune, as required applicable, or any of their respective Subsidiaries take any action covered by Lawthis Section 5.1(b) with respect to any Station Agreement (x) that is or would be a network affiliation agreement or (y) that relates to the receiving or obtaining of Program Rights;
(mc) other than as required by applicable Law or the existing terms of any Employee Plan or Collective Bargaining Agreement in effect on the date hereof, (i) grant or increase any severance or termination pay to any Employee above the severance or termination pay that would be due under the severance plans of Seller or Tribune, as applicable, in effect as of the date hereof; (ii) enter into or amend any employment, severance or termination agreement with any Employee or hire any Employee except, in each case, in connection with any of the following actions (and with respect to hiring new Employees as permitted by clauses (w) and (x) below), to the extent taken in the ordinary course of business that would not materially increase consistent with past practices (and otherwise subject to the costs amend other restrictions in this Section 5.1(c)); (w) the hiring of any on-air talent, producer, news director or terminate general manager with annual base compensation equal to or less than $350,000; (x) the hiring of any Employee with an annual base compensation equal to or less than $250,000 in order to fill a vacant position; (y) any promotion or increase in duties and responsibilities of an Employee commensurate with a promotion or an increase in duties and responsibilities; or (z) any Contract renewal upon the expiration of an Employment Agreement for Employees who are not executive officers; provided, that such renewal or extension contains substantially similar terms as those in the Employment Agreement of other Employees in such positions or similar positions as have been provided by Seller or Tribune, as applicable, or any of their respective Subsidiaries and are made in the ordinary course of business consistent with past practice; (iii) establish, adopt, terminate or amend any (A) other Employee Plan or International Plan or adopt or enter into (including any plan plan, agreement or arrangement that would be considered an a Employee Plan or International Plan if it were in existence effect on the date hereof hereof) or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake any (B) except as a result of the foregoing in the future or enter into, amend or extend any Bargaining Agreement or recognize any good- faith negotiations with a labor union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licensee, other than in the ordinary course of the Business business consistent with past practice practice, Collective Bargaining Agreement; (iv) take any action to accelerate the vesting or payment, or fund or secure the payment, of compensation (including any equity- based compensation) or benefits of any Employee under a Employee Plan or otherwise; or (v) except as set forth on Section 5.1(c)(v) of the Disclosure Schedule, grant any increase in all material respectscompensation, bonus or other payments or benefits payable to any Employee, except for (A) merit and annual salary increases as set forth on Section 5.1(c)(v) of the Disclosure Schedule and (B) short-term annual bonus payments, in each case, in the ordinary course of business consistent with past practices and as permitted by Section 6.2 of this Agreement;
(d) in respect of the Business, materially change the methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP or by any Governmental Authority or applicable Law;
(e) modify or accede to the modification of any of the Station Licenses if doing so is reasonably likely to be materially adverse to the interests of Buyer and its Subsidiaries after giving effect to the consummation of the transactions contemplated by this Agreement in the operation of the Stations or fail to provide Buyer with a copy of (and a reasonable opportunity to review and comment on) any application for the modification of any of the Station Licenses reasonably in advance of filing with the FCC, except, in each case, as required by Law or as required in connection with the broadcast incentive auction, reassignment and repack conducted by the FCC pursuant to Section 4603 of the Middle Class Tax Relief and Job Creation Act (Pub. L. No. 112- 96, §6403, 000 Xxxx. 000, 225-230 (2012)) (the “Incentive Auction & Repack”);
(f) apply to the FCC for any construction permit that would restrict in any material respect the Stations’ operations or make any filingmaterial change in the Purchased Assets that is not in the ordinary course of business, pay any fee, except as may be necessary or take any other action necessary advisable to maintain or continue effective transmission of the ownershipStations’ signals within their respective service areas as of the date hereof, validity and enforceability of except, in each case as required by Law or as required in connection with the Incentive Auction & Repack;
(g) fail to timely make any material Business Patents or Business Trademarks owned by Seller retransmission consent election with any MVPDs that reported more than 50,000 paid subscribers to Seller, Tribune or any of its Subsidiariesany of their respective Subsidiaries for September 2018 located in or serving the Stations’ Markets;
(h) fail to take any action required to repack or modify any Station as required by the Incentive Auction & Repack; or
(pi) agree agree, resolve or commit to do any of the foregoing. For the avoidance of doubt, Seller Buyer acknowledges and agrees that: (A) nothing contained in this Agreement shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller give Buyer or any of its Affiliates any Affiliates, directly or all indirectly, the right to control or direct the operations of Seller or Tribune, as applicable, prior to the Closing, (B) prior to the Closing, Seller or Tribune, as applicable, or the Business shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; Stations and (iiiC) settle intercompany balances between notwithstanding anything to the contrary set forth in this Agreement, no consent of Buyer shall be required with respect to any Purchased Subsidiary, on the one hand, and Seller matter set forth in this Section 5.1 or any Retained Subsidiary, on the other hand, and make capital increases elsewhere in connection therewith, except in each case, this Agreement to the extent that the requirement of such transfer consent would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessviolate any applicable Law.
Appears in 1 contract
Conduct of the Business. From With respect to the date hereof until operation of the Business from and after the Execution Date through and including the Closing Date, except as set forth unless Buyer shall otherwise consent in Schedule 5.01writing:
(a) Parent shall use its reasonable efforts, as expressly contemplated by applicable Law or by the Transaction Documents, with respect and shall use its reasonable efforts to any Excluded Liability or Excluded Asset, or with Buyer’s prior written consent cause Seller to:
(not to be unreasonably withheld, conditioned or delayed), Seller shall conduct i) operate the Business in the ordinary course of business consistent with past practice practices and to reserve intact the Business’ relationships with its employees, clients, customers and suppliers with the objective of preserving unimpaired its goodwill and ongoing Business at the Closing Date;
(ii) comply in a timely fashion with the provisions of all of the Contracts;
(iii) take reasonable actions to maintain the Property in substantially the same condition as such assets existed on the Execution Date and consistent with past practices; and
(iv) maintain in full force and effect all insurance policies related to the Business, subject to variations required by the ordinary operations of Parent or Seller, as the case may be, or else obtain or cause to be obtained, prior to the lapse of any such policy, substantially similar coverage with insurers of recognized standing.
(b) Parent shall use its reasonable efforts to not, and shall use its commercially reasonable efforts to preserve intact the present business organizations and goodwill of the Business, preserve the present relationships of the Business with customers and suppliers and maintain the properties, machinery and equipment related to the Business in good repair and operation condition (subject to normal wear). Without limiting the generality of the foregoing and subject to applicable Law, from the date hereof until the Closing Date, except as set forth in Schedule 5.01, as expressly contemplated by the Transaction Documents (including the Restructuring) or with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, permit Seller shall not and shall cause its Subsidiaries (including any Purchased Subsidiary) not to:
(a) acquire a material amount of assets from any other Person except (i) pursuant to existing Contracts or (ii) otherwise in the ordinary course consistent with past practice (in all material respects);
(b) sell, lease, license or otherwise dispose of any Purchased Assets or assets Property other than to fulfill obligations arising under any Contract existing as of the Purchased Subsidiaries (other than Non-Business Assets), or in either case, any interests therein, except (i) pursuant to existing Contracts, or Execution Date;
(ii) otherwise in the ordinary course consistent with past practice;
acquire any asset, obtain any Permit, or enter into any contract or agreement (cwhether oral or written) create or otherwise incur any Lien on any Purchased Asset or any asset of any Purchased Subsidiary, other than Permitted Liens and with respect to the Purchased Subsidiaries, Liens with respect to the Non-Business Assets;
(d) incur any capital expendituresthat would constitute Property, except for those contemplated by the capital expenditure budget made available to Buyer prior to the date of this Agreement and unbudgeted capital expenditures not to exceed $100,000 individually service or $1,000,000 in the aggregate;
(e) other than in connection with actions permitted by Section 5.01(a) or Section 5.01(d), make any loans, advances or capital contributions to, or investments in, any other Person with respect to the Business, other than in the ordinary course of business consistent with past practice in all material respects;
(f) except as required by Law, amend or modify in any material respect or terminate any Contract listed in Schedule 3.09, or otherwise waive or release any material rights, claims or benefits of the Business thereunder;
(g) enter into any Contract (including a hedging or swap agreement or similar arrangement) that would be required to be disclosed in Schedule 3.09 if such Contract were in place as of the date of this Agreement, in each case other than any such Contract sales contracts entered into in the ordinary course of business consistent with past practice in all material respects and on customary termspractice;
(hiii) enter into mortgage or pledge any agreement Property or arrangement that limits or otherwise restricts in subject any material respect the Business, Buyer or Property to any of their respective Affiliates (including the Purchased Subsidiaries after the Closing Date), from engaging or competing in any line of business, in any location or with any PersonEncumbrances;
(iiv) institute, settle, or offer or propose agree to settle, settle any material Action involving Proceeding related to the Business pending or relating to the transactions contemplated by this Agreementthreatened before any arbitrator, court or other Governmental Authority;
(jv) with respect (A) grant to any Purchased Subsidiaryofficer, make employee or change consultant of the Business any Tax electionincrease in compensation, bonus or other benefits, (B) grant to any such officer, employee or consultant of the Business any severance or termination pay or benefits or any increase in severance, change any annual Tax accounting periodor control or termination pay or benefits; and (C) establish, adopt or change any method of Tax accountingadopt, enter into or amend any closing agreement, settle any Tax claim, audit Employee Benefit Plan or assessment, or take any affirmative action collective bargaining agreement related to surrender any right to claim a Tax refund, in each case except in the ordinary course of business consistent with past practices in all material respects or if such action will have no material effect on the Tax Liability of the Purchased Subsidiary (other than for Pre-Closing Taxes)Business;
(kvi) make any material change in any method of accounting or accounting practice of Seller principles or any of its Subsidiaries with respect practices as it relates to the Business (including the Purchased Subsidiaries)Business, except for any such change required by reason of a concurrent change in GAAP;GAAP or applicable Law; or
(lvii) (i) enter into any Bargaining Agreementauthorize, employment, deferred compensation, severance, retirement commit or other similar agreement entered into with any Business Employee or Purchased Subsidiary Employee (or any amendment agree to any such existing agreement), (ii) other than as provided under the Severance Plan, grant any new severance or termination pay to any Business Employee or (iii) increase the compensation payable to any Business Employee, in each case other than in the ordinary course of business consistent with past practices in all material respects or as required by Law;
(m) other than as required by Law or in the ordinary course of business that would not materially increase the costs amend or terminate any Employee Plan or International Plan or adopt or enter into any plan or arrangement that would be considered an Employee Plan or International Plan if it were in existence on the date hereof or materially increase the benefits provided under any Employee Plan or International Plan, or promise to commit to undertake take any of the foregoing actions.
(c) Notwithstanding anything to the contrary set forth herein, between the Execution Date and the Closing Date, the Business, shall not, and Buyer shall cause its members to not, without the prior written consent of JCP (as hereinafter defined) and Parent, create, incur or assume any indebtedness, or assume, guarantee, endorse or otherwise become liable for any obligations in excess of Fifty Thousand U.S. Dollars ($50,000) individually or Two Hundred Fifty Thousand U.S. Dollars ($250,000) in the future or enter into, amend or extend any Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees or Purchased Subsidiary Employees;
(n) adopt, approve, consent to or propose any change in the respective Organizational Documents of Seller or any of the Purchased Subsidiaries;
(o) negotiate or enter into any license of any material Business Intellectual Property Right, whether as licensor or as licenseeaggregate, other than in compliance with the ordinary course of current budget for the Business consistent with past practice in all material respectsBusiness, or fail to make any filing, pay any fee, or take any other action necessary to maintain the ownership, validity and enforceability of any material Business Patents or Business Trademarks owned which has been previously approved by Seller or any of its Subsidiaries; or
(p) agree or commit to do any of the foregoingParent. For the avoidance of doubtdoubt should any member of Buyer, Seller including but not limited to Jxxxx Xxx Xxxx, Pxxx Fxxxx, Mxxx Xxxxxxx or Bxxxx Xxxxxxx, cause the Business to breach this Section 6.8(c) then Buyer shall be permitted to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any deemed in breach of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account that is a Purchased Asset; and (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the Businessthis Section 6.8(c).
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
