Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value; (c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice; (e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period; (f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return; (g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement; (1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or (i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7.
Appears in 2 contracts
Samples: Stock Purchase and Backstop Agreement (Kv Pharmaceutical Co /De/), Stock Purchase and Backstop Agreement (Deutsche Bank Ag\)
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (Closing, except as otherwise expressly provided contemplated by this Agreement or permitted by as the terms of this Agreement)Investor shall otherwise agree in writing in advance with respect to the Business, the Company covenants and its agrees to, and shall cause the Associated Subsidiaries shall use their respective commercially reasonable efforts to to, (ai) conduct their businesses the Business in the ordinary and usual course in all material respects as conducted at the date of this Agreementa manner consistent with past practice, and (bii) use their best efforts to preserve intact its present business organization, (iii) make available to the extent consistent therewith, use commercially reasonable efforts to (i) keep available Investor the services of their current executive officersthe officers and employees of the Business, and (iiiv) preserve substantially intact the commercial good will and relationships with customers, suppliers, distributors suppliers and others that are material to having business dealings with the Business and (v) not take any action which would cause any of the representations and warranties of the Company in Article III to be untrue or its Subsidiaries, consistent with past practice incorrect in any material respect as conducted prior to the date of this Agreement. Without limiting the generality of the foregoingClosing. From December 31, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by 1997 through the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, Date the Company shall will not, and shall will cause its the Associated Subsidiaries not to:
(a) to (i) declare, set aside or pay any dividends onwith respect to their respective capital stock, or make redeem or otherwise acquire any of their respective capital stock or other distributions securities (except for payments of cash dividends and redemptions for cash) or (ii) pay any indebtedness or accounts payable except for indebtedness or accounts payable of the Business to third parties in the ordinary course of business (it being expressly understood that no payments will be made on any intercompany notes).
(b) During the period from the date of this Agreement to the Closing, except as otherwise provided for in this Agreement or Section 5.2 of the Disclosure Schedule or as the Investor shall otherwise consent, the Company covenants and agrees that, with respect to the Business, it shall not, and it shall not permit its Associated Subsidiaries to:
(i) other than (a) sales of products in the ordinary course of business, or (b) sales of obsolete plants and equipment in the ordinary course of business, sell, transfer, convey, assign or otherwise dispose of, or agree to sell, transfer, convey, assign or otherwise dispose of, any of its capital stock assets or properties, or suffer or permit the creation of any Encumbrance; other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or ordinary course of business;
(ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options than (a) Commitments to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory distributors in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries practice or (iib) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practicepractice (x) take any action, or enter into or authorize any Commitment or transaction or (y) terminate, modify, amend or otherwise alter any material terms or provisions of any of its Commitments, except as expressly contemplated by this Agreement;
(eiii) other than abandon, sell, pledge, alter, amend or enter into any licensing or contractual arrangements with respect to any Intellectual Property Rights;
(iv) fail to pursue the collection of receivables in connection with the repair or replacement ordinary course of asset of the Company or business, fail to discharge its Subsidiaries payables in the ordinary course of business consistent with past practice, or otherwise make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) material change in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent dealing with past practices) any existing, Company Plans, arrangements customers or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardssuppliers as a whole; or
(iv) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hollinger International Inc), Asset Purchase Agreement (Liberty Group Management Services Inc)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from From the date of this Agreement to the earlier of until the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Time, the Company shall, and shall cause each of its Subsidiaries shall use their respective commercially reasonable efforts to (a) to, conduct their businesses its business in the ordinary course consistent with past practice and in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewithcompliance with Applicable Laws, use commercially reasonable efforts to (i) preserve intact its assets and business organization, (ii) maintain in effect all of its material Governmental Authorizations, (iii) keep available the services of their current executive officers, its directors and officers and employees in the aggregate and (iiiv) preserve substantially intact the commercial maintain satisfactory relationships with its customers, partners, suppliers, distributors and others having material business relationships with it; provided, that are material the Company’s inability to the Company keep available any such services or its Subsidiaries, consistent with past practice as conducted prior to the date maintain any such relationships after using commercially reasonable efforts shall not be a breach of this AgreementSection 5.1. Without limiting the generality of the foregoing, from the date of this Agreement until the Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or with the prior written consent of Parent (1) as otherwise expressly required or permitted by this Agreementwhich consent, in the cases of subparagraph (e), (2) as required by lawh), (3j), (k), (l), (m), (o) for actions approved and, solely with respect to matters covered by the Requisite Investors in writing foregoing subparagraphs, (which approval p), shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and nor shall cause it permit any of its Subsidiaries not to:
(a) amend its certificate of incorporation, bylaws or other comparable charter or organizational documents (whether by merger, consolidation or otherwise);
(b) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in respect ofcash, any of its capital stock other than dividends and distributions stock, property or otherwise) in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any of its Subsidiaries, other securities thereof than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company to its parent, (ii) split, combine or reclassify any shares of capital stock of the Company or any rightsof its Subsidiaries or (iii) purchase, warrants redeem or options to otherwise acquire any such shares Company Securities or other securitiesCompany Subsidiary Securities;
(bc) (i) issue, deliver, sell, grant, sell, pledge, dispose of transfer, subject to any Lien or otherwise encumber or dispose of any Company Securities or Company Subsidiary Securities, other than the issuance of its capital stock shares of Company Common Stock upon the exercise of Company Stock Options that are outstanding on the date of this Agreement or (ii) amend any term of any Company Security or any securities convertible intoCompany Subsidiary Security (in each case, whether by merger, consolidation or any rights, warrants or options to acquire, any such capital stock at less than fair market valueotherwise);
(cd) acquire adopt a plan or agree to acquire agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(e) incur any capital expenditures or any obligations or liabilities in respect thereof, except for (i) those contemplated by merging or consolidating with, or by purchasing a substantial portion the capital expenditure budget of the stockCompany that has been provided to Parent and (ii) other capital expenditures not to exceed $10,000,000 in the aggregate, exclusive of any such expenditures covered by insurance;
(i) acquire (including by merger, consolidation or acquisition of stock or assets) any interest (other ownership interests inthan an interest in its capacity as a creditor in a bankruptcy, reorganization or substantial portion of assets of, or by any other manner, any business or similar proceeding) in any corporation, partnership, association, joint venture, limited liability company or other entity business organization or division thereof or any material operating assets, or (ii) merge or consolidate with any other Person;
(g) sell, lease, license, pledge, transfer, subject to any Lien (other than Permitted Liens) or otherwise dispose of any Subsidiary or any material operating assets or properties;
(i) increase the compensation, bonus or other benefits of any directors, officers or employees, other than in excess accordance with the terms of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the PreCompany CBAs and other increases to non-Closing Period, except purchases of supplies, equipment and inventory executive employees in the ordinary course of business business, consistent with past practice;
practices, (dii) increase any severance, change of control or termination pay or benefits, (iiii) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" employment, deferred compensation or other agreement to maintain similar agreement, other than “at will” employment arrangements, or amend any financial statement condition of another Person such existing agreement, with any director, officer or employee (iv) establish, adopt or enter into any arrangement having Company Benefit Plan (other than offer letters for “at will” employment without severance benefits, other than severance benefits available under the economic effect Company Benefit Plans in existence on the date of this Agreement) or collective bargaining agreement, or amend (except as would not reasonably be expected to increase any benefit payable thereunder or any administrative expense thereof) any Company Benefit Plan or Company CBA, (v) other than as a result of entering into, or as contemplated by, this Agreement, take any action to accelerate any rights or benefits or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, or (vi) make any Person a beneficiary of any retention or severance plan under which such Person is not as of the foregoingdate of this Agreement a beneficiary which would entitle such Person to payments, vesting, acceleration or any other right as a consequence of consummation of the transactions contemplated by this Agreement and/or termination of employment;
(i) make any change in any method of accounting principles, method or practices, except for (A) borrowings and increases any such change required by reason of a concurrent change in letters of credit permitted GAAP, or as required by the Public Company Accounting Oversight Board, by Regulation S-X under the DIP Credit Agreement and Exchange Act, or interpretations of GAAP as announced by the Financial Accounting Standards Board, in each case, as agreed to by the Company’s independent auditor;
(B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (iij) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) Person other than advances to employees in the ordinary course of business and loans, advances or capital contributions (1) between to the Company and or any of its wholly-owned Subsidiaries and other than investments required pursuant to the terms of Material Contracts as in effect on the date of this Agreement, together with such modifications to any such Material Contracts expressly permitted by this Section 5.1;
(2k) between such Subsidiaries and (B) customary immaterial advances create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness, other than as contemplated by the Company’s 2007 base action plan or otherwise in the ordinary course of business consistent with past practicepractice in an amount not to exceed $5,000,000 in the aggregate; provided, that all such Indebtedness is prepayable at any time by the Company without penalty or premium;
(el) enter into, terminate, renew, amend or modify in any material respect or fail to enforce any material term of any Material Contract;
(m) (i) pay, discharge, settle or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than in connection with the repair payment, discharge, settlement or replacement of asset of the Company or its Subsidiaries satisfaction in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) as required by their terms as in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability effect on the most recent Financial Statementsdate of this Agreement, of claims, liabilities or amend any material Tax Return;
obligations reserved against on the Company Balance Sheet (g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status for amounts not in excess of such plans under reserves) or incurred since the Code date of such financial statements in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotionspractice, in each case consistent with past practice case, the payment, discharge, settlement or satisfaction of which does not include any obligation (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3other than the payment of money) grant to be performed by the Company or any stock options or stock awards of its Subsidiaries following the Closing Date or (4ii) waive, relinquish, release, grant, transfer or assign any right of material value;
(n) make or change any material Tax election, change any annual tax accounting period, adopt or long-term incentive awards; orchange any method of tax accounting, amend any material Tax Returns, enter into any material closing agreement, or settle any material Tax claim, audit or assessment;
(io) institute, settle, or agree to settle any material litigation, investigation, arbitration, proceeding, or otherwise other claim pending or threatened before any arbitrator, court or other Governmental Entity;
(p) authorize, resolve, commit or agree to take any of the actions set forth foregoing actions. Nothing contained in this Agreement shall give Parent, directly or indirectly, the foregoing subsections (a) through (h) right to control or direct the operations of the Company prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Section 4.7Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Samples: Merger Agreement (Lone Star Technologies Inc), Merger Agreement (United States Steel Corp)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned)The Company agrees that, during the period from the date of this Agreement to the earlier of the Effective Date and the date on which (x) termination of this Agreement is terminated in accordance with its terms Section 8.1 and (the “Pre-Closing Period”y) (Closing, except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted contemplated by this AgreementAgreement or by applicable Law, (2) or as required consented to by law, (3) for actions approved by the Requisite Investors in writing Buyer (which approval consent shall not be unreasonably withheld, conditioned or delayed), or ):
(4a) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall notshall, and shall cause its Subsidiaries not to:, conduct its business in the Ordinary Course and use its commercially reasonable efforts to (i) preserve intact its present business organization, (ii)maintain in effect all of its material Licenses, (iii) keep available the services of its directors, officers and key employees, (iv) make capital expenditures in the Ordinary Course and in accordance with the capital expenditure budget attached as Schedule 5.1(b)(v) and (v) maintain, preserve and retain satisfactory relationships with its suppliers, vendors and customers, in each case, with whom it has entered into any Company Material Contract; and
(ab) without limiting the generality of the foregoing, the Company shall not and shall cause each Company Subsidiary not to effect any of the following;
(i) make any change in or amendment to its Organizational Documents whether by merger consolidation or otherwise;
(ii) declare, set aside or pay any dividends ondividend or other distribution with respect to, or make any other distributions in respect direct or indirect acquisition of, any capital stock of any Group Company, except for cash dividends permitted under Section 5.1;
(iii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other than dividends and distributions in ownership interests, as applicable, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company issuance or another wholly-owned Subsidiary not in excess sale of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Planwhich relate to, any shares of capital stock of the Company or any other securities thereof ownership interests, as applicable (for the avoidance of doubt, this Section 5.1(b)(ii) shall not prohibit an Option Holder from otherwise exercising any or any rights, warrants or options to acquire any all Options outstanding as of the date hereof held by such shares or other securitiesOption Holder in accordance with the applicable Option Agreement);
(biv) issuesplit, delivercombine, grantredeem or reclassify, sell, pledge, dispose of or purchase or otherwise encumber acquire, any membership interests, shares of its capital stock or any securities convertible intoother ownership interests, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueas applicable;
(cv) incur any capital expenditures or any obligations or liabilities in respect thereof, except for (A) those contemplated in the capital expenditure budget attached as Schedule 5.1(b)(v) hereto (the “Capex Budget”) and (B) any unbudgeted capital expenditures not to exceed $100,000 individually or $300,000 in the aggregate;
(vi) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than materials, inventory and supplies in the Ordinary Course;
(vii) sell, license, lease, transfer, assign, abandon or otherwise dispose of, or create or incur any Lien on, any of, or impose any Lien (other than Permitted Liens) upon, its properties or assets other than (A) sales of inventory in the Ordinary Course or (B) Liens that would not reasonably be expected to be material to the Group Companies;
(viii) materially amend or waive any right thereunder or terminate any Company Material Contract in a manner materially adverse to the Group Companies; provided, however, that the Company and the Company Subsidiaries may renegotiate the terms of, or otherwise extend, any Company Material Contract that has expired in accordance with its terms prior to the date hereof or is scheduled to expire in accordance with its terms within six (6) months after the date hereof so long as the Contract as renegotiated (A) is terminable without penalty on not more than 90 days’ notice and (B) is no less favorable in the aggregate to the Group Companies as compared to the initial Contract; or enter into a Contract which, had it been entered into prior to the date hereof, would have been a Company Material Contract (other than entering into any new Contract in the Ordinary Course);
(ix) (A) create, incur, assume, suffer to exist or otherwise become liable with respect to any material Indebtedness, other than short-term Indebtedness incurred in the Ordinary Course (including with respect to letters of credit) or borrowings under existing credit facilities and Indebtedness which is repaid in full at or prior to the Closing or (B) make any loans or advances to any other Person;
(x) (A) grant or agree to acquire grant any more than de minimis increase in salaries, wages or bonus, profit sharing, retirement, insurance or other compensation or benefits to any current or former Service Provider, (iB) by merging grant any equity or consolidating equity-based or other incentive award to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Service Provider, (C) grant or increase any severance, retention or termination pay to, or enter into or amend any retention, termination, employment, consulting, bonus, change in control or severance agreement with, any current or by purchasing former Service Provider, (D) establish, enter into, adopt, materially amend or terminate any Company Benefit Plan or Collective Bargaining Agreement, (E) hire any individuals who would replace a substantial portion Key Employee or (F) terminate the employment of the stockany Key Employee other than for cause, except, in each case, (x) as may be required under applicable Law or other ownership interests in, or substantial portion of assets of, or (y) as may be required by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof Company Benefit Plan of a Group Company in effect on the date hereof or (iiz) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) solely in the aggregate during the Pre-Closing Periodcase of increases in salary or wages for Service Providers who are not Key Employees, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
practice (d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entityincluding in connection with new hires, issue or sell any debt securities or warrants promotions or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases changes in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances job status in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business practice and annual increases to existing Service Providers who are not Key Employees consistent with past practice);
(xi) except as may be required under applicable Law, make or incur change any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) makede minimis Tax election, change in a material manner any Tax accounting period, adopt or rescind change any material election relating to Taxesmethod of Tax accounting, file any amended Tax Return, settle or compromise any material Tax liability for claim, assessment audit, contest or other similar proceeding, surrender any right to claim a Tax refund, offset or other reduction in Tax liability, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment other than any extension pursuant to an amount greater than the amount reserved for such liability on the most recent Financial Statementsextension to file any Tax Return, or amend obtain any material Tax Return;
(g) adopt, ruling or enter into any newclosing or similar agreement;
(xii) make any material change to any of the accounting principles adopted by the Group Companies or material change in the Group Companies’ accounting policies, procedures, practices or methods with respect to applying such principles, other than as required by GAAP or Law;
(xiii) commence, settle, or renewoffer or propose to settle (other than any claim covered entirely by insurance) (A) any litigation, investigation, arbitration, proceeding or materially amend claim involving or supplement against any existingGroup Company where the amount involved exceeds $10,000, Collective Bargaining (B) any stockholder litigation or dispute against the Company or any of its officers or directors, except to the extent settled prior to the Closing or (C) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated by this Agreement;
(1xiv) enter into cancel or forgive any new, material Indebtedness owed to the Company or amend or terminate (other than amendments required to maintain any of the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensationSubsidiaries, other than Indebtedness of the Company to a Company Subsidiary or Indebtedness for borrowed money of a Company Subsidiary to the Company or to another Company Subsidiary;
(xv) enter into, modify or amend in any respect, any Related Party Contract, or Contract that would have been a Related Party Contract if entered into prior to the date hereof;
(xvi) write-off any accounts or notes receivable of the Group Company in excess of $50,000 individually or $100,000 in the ordinary course aggregate, or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant sell or assign any stock options account or stock awards or (4) make any annual or long-term incentive awardsnote receivable; or
(ixvii) authorize any of, or commit or agree or otherwise commit to take any of the actions set forth in of, the foregoing subsections (a) through (h) actions in respect of which it is restricted by the provisions of this Section 4.7Section 5.1.
(c) Notwithstanding anything to the contrary contained herein, the Company and its Subsidiaries shall be permitted to utilize any and all available Cash and Cash Equivalents (i) to pay Company Transaction Expenses; (ii) to repay outstanding Indebtedness; and (iii) to declare, pay or set aside dividends or other distributions (x) between the Company and the Company Subsidiaries or (y) to the Stockholders so long as such amounts are paid prior to the Closing Date, in each case, at such times and in such amounts as the Company or the applicable Subsidiary shall deem necessary, appropriate, or desirable.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Charles River Laboratories International Inc)
Conduct of the Business. (a) Except as otherwise (v) set forth on Schedule 4.2, as expressly permitted or required by law, (w) disclosed in the Disclosure Statement, (x) required by under this Agreement or the Chapter 11 Plan or (y) as otherwise consented to or approved in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned)Parent and Operator, during the period from commencing on the date of this Agreement to hereof and ending at the earlier of the Effective Closing Date and the date on which or termination of this Agreement is terminated in accordance with its terms Article 6 (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries Companies shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available operate (or, as applicable, shall cause the services operation of) the Business only in the Ordinary Course of their current executive officers, Business; and (ii) preserve substantially intact the commercial (A) their business organization and preserve their relationships with employees, customers, suppliers, distributors distributors, licensors, licensees and others that are having material dealings with the Business and (B) all Casualty/Condemnation Claims.
(b) In addition to Section 4.2(a) above, during the Company or its Subsidiaries, consistent with past practice as conducted prior to period commencing on the date hereof and ending at the earlier of the Closing Date or termination of this Agreement. Without limiting the generality of the foregoingAgreement in accordance with its terms, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.74.2(b) or as expressly permitted or required under this Agreement, during the Pre-Closing Period, the Company HoldCo shall not, not (and shall cause its Subsidiaries the Companies not to) do any of the following, in each case with respect to the Business, without the prior written consent of Parent and Operator:
(a) (i) declareexcept as required by Applicable Law or the terms of any Company Benefit Plan, set aside (A) materially increase the salary or pay other compensation of any dividends onofficer, director or Employee of the Companies, other than in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus or benefit to any Employee or director (excluding any one-time payments that are paid in full by HoldCo or OpCo prior to the Closing Date), (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other Benefit Plan or arrangement made to, for or with any of the directors, officers, Employees, agents or representatives of the Companies or otherwise modify or amend or terminate any such plan or arrangement, in each such case, if such benefit would continue after the Closing Date, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of (D) except for the capital stock renewal of any wholly-owned direct or indirect Subsidiary of the Company employment agreement expiring prior to the Company or another wholly-owned Subsidiary not in excess Closing Date on the same terms and conditions for a term of no greater than one hundred thousand dollars ($100,0001) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entityyear, enter into any "keep well" employment, deferred compensation, severance, non-competition or other similar agreement or arrangement with any officers, directors or Employees of the Companies (or materially amend any such agreement) to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of which any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under Companies is a party that will continue after the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or Closing Date;
(ii) make any loans, advances or of capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practicePerson;
(eiii) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practiceexcept as required by Applicable Law, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(fA) make, change or rescind revoke any material election relating to TaxesTax election, (B) settle or compromise any material Tax liability Claim or Liability or enter into a settlement or compromise with respect to any Tax, (C) change (or make a request to any Governmental Authority to change) any aspect of its method of accounting for an amount greater than the amount reserved for such liability Tax purposes, (D) execute any waiver of restrictions on the most recent Financial Statementsassessment or collection of any Tax, or (E) amend any material Tax Return, or (F) take any position on any Tax Return, or take any action, in each case, that would be inconsistent with past practice, that would have the effect of increasing the Tax liability in respect of any Post-Closing Tax Period of the Companies;
(giv) adoptincur any Lien (other than Permitted Liens or Permitted Encumbrances, as applicable) on any of the Assets (whether tangible or intangible);
(v) acquire any properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Assets, including any Real Property and any rights to Intellectual Property, in excess of $200,000 in the aggregate, except for tangible personal property in the Ordinary Course of Business or as contemplated in the Annual Plan and the CapEx Budget; provided that, for the avoidance of doubt, neither the Real Property or any portion thereof nor any Lease shall be sold, assigned, licensed, transferred, conveyed, leased or otherwise disposed of;
(vi) other than pursuant to the Transaction Documents, enter into or agree to enter into any merger, consolidation or similar transaction with any Person, or engage in any new business, or otherwise acquire the securities of any other Person;
(vii) except with respect to the forfeiture of Restricted Preferred Shares, or withholding of Taxes with respect to Restricted Preferred Shares, in connection with a taxable event related to such Restricted Preferred Shares, issue, sell, permit any assignment or transfer of, or repurchase, redeem or otherwise acquire, any shares of the capital stock or other securities of, or interests in, any of the Companies;
(viii) fail to make or cause to be made all repairs, corrections and maintenance with respect to the Assets in the Ordinary Course of Business consistent with the Annual Plan and the CapEx Budget and/or as necessary in order to maintain the Assets in good order and in a safe condition and in substantial compliance with all Laws;
(ix) enter into commitments for capital expenditures that are not reflected in the CapEx Budget, or make any capital expenditures that are not reflected in the Annual Plan or the CapEx Budget, except that the Companies may (A) enter into commitments for or make additional capital expenditures in an amount not in excess of Two Hundred Thousand Dollars ($200,000) in the aggregate or (B) reallocate capital expenditures within the categories in the CapEx Budget so long as the amount of such reallocations do not exceed Two Hundred Thousand Dollars ($200,000) in the aggregate;
(x) make any non-de minimis alterations to the Real Property (other than repairs in the Ordinary Course of Business or as contemplated by the CapEx Budget);
(xi) exercise the purchase option under the Ground Lease;
(xii) enter into any Contract that would, if in effect on the date of this Agreement, be a Business Contract or a Lease;
(xiii) amend, cancel, supplement or waive, in each case, in any material respect, any provision of, or consent to the termination of, any Business Contract or Lease;
(xiv) modify in any material respect the insurance coverage described on Schedule 2.20;
(xv) settle, adjust or compromise any material claim for insurance proceeds relating to a casualty or for any award relating to a Taking (a “Casualty/Condemnation Claim”), provided that Parent and Operator shall not unreasonably withhold, delay or condition their consent to the same;
(xvi) materially modify or terminate any Business Contract or enter into any newContract that would have been a Business Contract if entered into prior to the date of this Agreement, in each case, except to the extent any such Contract, Permit, Company Benefit Plan or renewInsurance Policy is terminable by HoldCo upon no more than thirty (30) days prior written notice to the other appropriate Persons party thereto, or materially amend or supplement any existing, Collective Bargaining Agreementwithout penalty;
(1xvii) enter into settle or compromise any newpending or threatened Legal Proceeding or any Claim;
(xviii) materially change or materially modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other Liabilities;
(xix) amend the Charter Documents of any of the Companies;
(xx) take any action to remove customers from or terminate (other than amendments required to maintain otherwise modify the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensationCustomer Database, other than in the ordinary course or pursuant Ordinary Course of Business, including changes to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews customer information listed on the Customer Database and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsthe addition of customers to the Customer Database; or
(ixxi) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of do anything prohibited by this Section 4.74.2.
Appears in 2 contracts
Samples: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Conduct of the Business. Except as otherwise (v) required by lawIn connection with the ownership and use of the Assets, (w) disclosed Seller agrees to observe each term set forth in the Disclosure Statementthis Section 6.01 and agrees that, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement hereof until the Closing Date, unless otherwise consented to the earlier of the Effective Date and the date on which this Agreement is terminated by Buyer in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not towriting:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions Seller shall operate the Business and maintain the Assets only in respect of, any of its capital stock other than dividends and distributions in respect the ordinary course of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not Business as presently conducted by Seller, in excess of one hundred thousand dollars ($100,000) accordance in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection all material respects with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesSeller's past custom and practice;
(b) issueSeller shall not, deliver, grantdirectly or indirectly, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible intothe Assets, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueexcept in the ordinary course of the operation of the Business by Seller;
(c) acquire Seller shall not cancel or agree to acquire (i) by merging or consolidating withterminate its current insurance policies described in the Disclosure Schedule under the caption referencing Section 4.11, or by purchasing a substantial portion cause any of the stockcoverage thereunder to lapse unless, simultaneously with such termination, cancellation or other ownership interests inlapse, replacement policies providing coverage equal to or substantial portion of assets ofgreater than the coverage under the canceled, terminated or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets lapsed policies for substantially similar premiums are in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment full force and inventory in the ordinary course of business consistent with past practice;effect; and
(d) Seller shall (i) incur any indebtedness use commercially reasonable efforts to keep available the services of those officers and employees of Seller responsible for borrowed money or guarantee any such indebtedness of another individual or entityoperating the Plants but shall make no new commitments beyond June 30, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing1997, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or as expressly authorized by Buyer; (ii) make confer on a regular and frequent basis with representatives of Buyer to report on operational matters and the general status of ongoing operations with respect to the Business and the Assets; (iii) not intentionally take any loans, advances or capital contributions toaction which would render, or investments inwhich reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at the Closing; (iv) notify Buyer of any emergency or other individual change in the normal operation of the Business and of any governmental or entitythird party complaints, except for investigations or hearings (Aor communications indicating that the same may be contemplated) loansif such emergency, advances change, complaint, investigation or capital contributions (1) between hearing would be material, individually or in the Company and its Subsidiaries aggregate, to the operations of the Business or to Seller's or Buyer's ability to consummate the transactions contemplated by this Agreement; and (2v) between such Subsidiaries and (B) customary immaterial advances promptly notify Buyer in the ordinary course of business consistent with past practice;
(e) other than writing if Seller shall discover that any representation or warranty made by it in connection with the repair this Agreement was when made, or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practicehas subsequently become, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) untrue in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7respect.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Seneca Foods Corp /Ny/), Asset Purchase Agreement (Seneca Foods Corp /Ny/)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement At all times prior to the earlier of Closing:
(a) Subject to the Effective Date and the date on which this Agreement is terminated limitations set forth in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this AgreementSection 5.1(b), the Company will, and will cause its Subsidiaries shall use their respective commercially reasonable efforts to members, managers and employees to, (ai) conduct their businesses in the ordinary course in all material respects as conducted at the date of this AgreementBusiness only in, and not take any action except in, the Ordinary Course of Business and in accordance with applicable Law; (bii) to the extent consistent therewith, use commercially reasonable efforts to (i) preserve the Company’s business organization and goodwill, preserve intact all rights of the Company to retain its employees, keep available the services of their current executive its officers, employees and (ii) preserve substantially intact the commercial consultants and maintain good relationships with customersemployees, vendors, suppliers, distributors customers and others that are material having business relationships with it; (iii) subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the Company or its Subsidiaries, consistent with past practice general status of ongoing operations as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, requested by Buyer; (iv) except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by lawLaw, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed)take any action that would render, or (4) as set forth which reasonably may be expected to render, any representation or warranty made by Seller in Schedule 4.7this Agreement untrue or would, during the Pre-Closing Periodor which reasonably may be expected to, prevent the Company shall not, and shall from performing or cause it not to perform its Subsidiaries not to:
covenants hereunder; (av) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect all of the capital stock of any wholly-owned direct or indirect Subsidiary Company’s Liabilities and Taxes when due; and (vi) maintain insurance coverage in amounts adequate to cover the reasonably anticipated risks of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesCompany;
(b) issuewithout first obtaining the written consent of Buyer, deliverthe Company will not, grantand will cause its members, sellofficers, pledgemanagers and employees not to, dispose of directly or otherwise encumber indirectly with respect to the Company:
(i) cancel or terminate the Company’s current insurance policies or allow any of its capital stock the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or any securities convertible intolapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or any rights, warrants or options to acquire, any such capital stock at less than fair market valuelapsed policies for substantially similar premiums are in full force and effect;
(cii) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of any securities or assets (which are material, individually or in the stockaggregate, or other ownership interests in, or substantial portion of assets to the Company) of, or by any other manner, any business or any corporationPerson;
(iii) sell, partnershiptransfer, associationlease, joint venturelicense or assign any of the Acquired Assets or any interest therein or otherwise permit any of the Acquired Assets or any interest therein to become subject to any Encumbrance other than Permitted Encumbrances;
(iv) grant any license or sublicense of any rights under or with respect to any Acquired Intellectual Property;
(v) take any action not announced prior to the date of this Agreement to the customers, suppliers or distributors of the Company, including providing promotions, coupons, discounts or price increases;
(vi) enter into any Contract (or series of related Contracts);
(vii) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract, or accelerate, suspend, terminate, modify, cancel or waive any material right or remedy under, any such Contract;
(viii) violate any Law applicable to the Company;
(ix) change or announce any change to the Company Products or any services sold by the Company;
(x) violate, terminate or amend any Seller Contract or Governmental Authorization;
(xi) commence any Litigation other than for (A) the routine collection of accounts receivable or (B) injunctive relief on the grounds that the Company has suffered immediate and irreparable harm not compensable in money damages if the Company has obtained the prior written consent of Buyer, such consent not to be unreasonably withheld;
(xii) declare, authorize or pay any dividends on, make any other distributions with respect to, or redeem, repurchase or otherwise acquire any of its equity interests;
(xiii) make any capital expenditure in excess of $50,000, individually or in the aggregate;
(xiv) provide any credit, loan, advance, guaranty, endorsement, indemnity, warranty or mortgage to any Person, including any of the customers, members, officers, employees or managers of the Company;
(xv) borrow from any Person by way of a loan, advance, guaranty, endorsement, indemnity, or warranty;
(xvi) discharge any Encumbrance, indebtedness or other Liability (A) in excess of $25,000, individually or in the aggregate, except for Liabilities reflected or reserved against in the Latest Financial Statements and accounts payable in the Ordinary Course of Business or (B) not permitted to be discharged under the terms of the Letter of Intent;
(xvii) change its credit practices, accounting methods or practices or standards used to maintain its books, accounts or business records;
(xviii) change the terms of its accounts or other payables or take any action directly or indirectly to cause or encourage any acceleration or delay in the payment or generation of its accounts or other payables;
(xix) create, incur or become subject to any Liability, contingent or otherwise, except current Liabilities in the Ordinary Course of Business not in excess of $25,000 individually or in the aggregate and that would not violate the Company’s obligations under the Letter of Intent;
(xx) make any material change affecting the Business, including but not limited to (i) changes in wholesaler alignments, inventory levels, management organization or personnel arrangements with sales brokers, advertising agencies, market research projects, advertising and promotion budgets or the content of advertisements or working capital levels (payables, receivables and inventory); (ii) changes in discretionary costs, such as advertising, maintenance and repairs, research and development, and training; (iii) any capital expenditures or deferrals of capital expenditures; (iv) deviations from operating budgets or plans on sales and profitability; or (v) other than in the Ordinary Course of Business, change any of its business policies, including advertising, investments, marketing, pricing, purchasing, production, personnel, sales, returns, budget or product acquisition policies;
(xxi) amend its Certificate of Organization or limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceagreement;
(dxxii) (i) incur split, combine or reclassify any indebtedness for borrowed money of its securities or guarantee any such indebtedness of another individual or entity, issue or sell authorize the issuance of any debt other securities in lieu of, or in substitution for, its current issued and outstanding membership units;
(xxiii) issue, sell, dispose of or encumber, or authorize the issuance, sale, disposition or encumbrance of, any interest in its securities or warrants grant, enter into or accept any options, warrants, convertible securities or other rights to acquire any debt securities of or any other ownership interest in the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1xxiv) enter into any newemployment or collective bargaining agreement, written or oral, or amend or terminate modify the terms of any such existing agreement;
(other than amendments required xxv) fail to maintain the tax qualified status of such plans under the Code Acquired Assets in the ordinary course of business consistent with past practicesgood repair, order and condition, reasonable wear and tear excepted;
(xxvi) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsfile a petition for bankruptcy; or
(ixxvii) agree enter into any Contract or otherwise commit agree, in writing or otherwise, to take any of the actions set forth described in the foregoing subsections (aSection 5.1(b)(i) through (h) of this Section 4.7xxvii). above.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aventine Renewable Energy Holdings Inc), Asset Purchase Agreement (Nebraska Energy, L.L.C.)
Conduct of the Business. Except as otherwise (va) required by lawThe Seller (which reference, (wfor purposes of this Article 6, includes the Trust Subsidiary from and after the time it is organized and becomes a party to this Agreement) disclosed will carry on the Business diligently and substantially in the Disclosure Statementsame manner as heretofore, (x) required and the Seller will not, with regard to the Business, engage in any one or more activities or transactions which shall be outside of the usual, regular and ordinary course of the Business as conducted as of the date hereof except for activities or transactions expressly contemplated by this Agreement or Agreement, including any Bank Sale Transaction as described under Section 2.07 above; and
(b) The Seller will use its best efforts to preserve the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier value of the Effective Date Business. The Seller further agrees to use its best efforts to preserve for Buyer the goodwill of the Customers and others having relations with GMB through the date on which conduct of the Business, and to cooperate with and assist Buyer in assuring the orderly transition of such business, as will be conducted through the Trust Subsidiary, from GMB to Buyer. Nothing in this Agreement is terminated paragraph shall be construed as requiring Seller to engage in accordance with its terms (any activities or efforts outside of the “Pre-Closing Period”) (ordinary course of business as presently conducted, except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses for in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, and except (1) as set forth on Schedule 6.01 hereto or as otherwise expressly required or permitted provided for by this Agreement or as consented to in writing by Buyer, the Seller shall not:
(i) amend, revise or otherwise change the current fee schedules and arrangements with Customers as such are disclosed in Schedule 2.01(c) of this Agreement;
(ii) enter into any new line of business or offer any new product in connection with its conduct of the Business;
(iii) change its methods, (2) policies or procedures of accounting for or relating to or including the Business in effect at January 1, 1995, except as required by lawchanges in generally accepted accounting procedures;
(iv) except as required by applicable law or under an existing Employee Contract or Employee Plan , (3a) for actions approved by increase in any manner the Requisite Investors compensation or fringe benefits of any Transferred Employee or pay any special benefit to such person, other than in writing (which approval shall not be unreasonably withheld, conditioned or delayed)the ordinary course of business in normal amounts at normal times, or (4b) as set forth in Schedule 4.7enter into, during the Pre-Closing Periodmodify or renew any Employee Contract with any Transferred Employee, the Company shall notor establish, and shall cause its Subsidiaries not to:adopt, enter into or amend any Employee Plan covering or providing for any benefit to any Transferred Employee;
(av) sell, lease, pledge, encumber, assign or otherwise dispose of any material Purchased Asset, Personal Property, Contract or Trust Agreement (iother than any Retained Trust Agreement) declareor take any action which would have a material adverse effect on the value of any of the foregoing;
(vi) with respect to the Business or any of the Purchased Assets, set aside incur any debt, liability or pay any dividends onobligation (whether absolute or contingent, whether primary or secondary or whether directly by way of guaranty) or make any other distributions in respect ofloan or advance, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory case in the ordinary course of business consistent with past practice;
(dvii) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entityundertake, enter into or renew, amend or terminate, or give notice of a proposed renewal, amendment or termination of any "keep well" commitment with respect to, (a) any Contract, Trust Agreement (other than any Retained Trust Agreement) or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any Purchased Assets other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances than in the ordinary course of business consistent with past practicepractice or (b) any capital improvement related to the Business or any Purchased Asset, except as provided in the 1996 capital budget as previously disclosed to Buyer;
(eviii) commit any act or omission which constitutes a material breach or default by the Seller under any Seller Regulatory Agreement, Trust Agreement (other than any Retained Trust Agreement) or Contract;
(ix) since September 30, 1995, change the procedures or practices relating to the Business other than as required by law;
(x) establish any new trust account other than pursuant to GMB's policies and procedures in connection effect on June 30, 1995, as previously disclosed to Buyer, and in accordance with the repair customary terms, conditions and standards and applicable law and consistent with prudent fiduciary and business practices;
(xi) waive any material right, whether in equity or replacement of asset of the Company at law, that it has with respect to any Trust Agreement or its Subsidiaries Contract, except in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred prudent fiduciary and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodbusiness practices;
(fxii) makeauthorize, change recommend, propose or rescind any material election relating announce an intention to Taxesauthorize, settle recommend or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adoptpropose, or enter into an agreement with respect to, (a) any newmerger, consolidation, purchase and assumption transaction or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate business combination (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesas contemplated by this Agreement), (3b) grant any stock options acquisition of a material amount of assets or stock awards securities or assumption of liabilities or (4c) make any annual disposition of a material amount of assets or long-term incentive awardssecurities, which with respect to any of the foregoing would in any way relate to or affect the Business or any of the Purchased Assets or Assumed Liabilities, it being expressly agreed by the parties hereto that any agreement entered into by the Seller for or relating to a Bank Sale Transaction as described in Section 2.07 above shall not be prohibited by this Section 6.01 (b) (xi); or
(ixiii) agree or otherwise commit to take any action that is intended or may reasonably be expected to result in any of the actions its representations and warranties set forth in the foregoing subsections (a) through (h) of this Section 4.7Agreement being or becoming untrue.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Arrow Financial Corp), Stock Purchase Agreement (Vermont Financial Services Corp)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to Except (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2ii) as set forth in Section 5.01 of the Disclosure Schedules, (iii) as required by lawapplicable Law, or (3iv) for actions as approved by the Requisite Investors Investor in writing (which approval shall not be unreasonably withheld, conditioned or delayed), during the period from the execution and delivery of this Agreement until the earlier to occur of the termination of this Agreement pursuant to ARTICLE VII and the Closing, the Company shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to (A) conduct its business in all material respects in the ordinary course of business consistent with past practices, and (B) preserve intact in all material respects its material assets and business organizations and preserve in all material respects its goodwill, reputation and current significant relationships with its customers, suppliers, distributors, resellers, sales agents, channel partners, lessors, creditors, contractors and other Persons; provided that no action taken or not taken by the Company or any of its Subsidiaries because such action or inaction is restricted by Section 5.02 and Investor has refused to provide its consent to such action or inaction after a written request from the Company shall be deemed a breach of this sentence.
(4b) Except (w) as expressly required by this Agreement, (x) as set forth in Schedule 4.7Section 5.01 of the Disclosure Schedules, (y) as required by applicable Law, or (z) as approved by Investor in writing (which approval shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Periodperiod from the execution and delivery of this Agreement until the earlier to occur of the termination of this Agreement pursuant to ARTICLE VII and the Closing, the Company shall not, and shall cause not permit any of its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends ondividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any shares of capital stock or other equity or voting interest, or make any other distributions in respect ofactual, any of its capital stock other than dividends and distributions constructive or deemed distribution in respect of the shares of capital stock of or other equity or voting interest, except for cash dividends made by any wholly-owned direct or indirect wholly owned Subsidiary of the Company to the Company or another wholly-one of its other wholly owned Subsidiary not in excess Subsidiaries or any cash dividends or distributions necessary for the payment of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period any taxes; or pledge or encumber any shares of its capital stock or other equity or voting interest;
(ii) purchaseexcept for transactions solely among the Company and its Subsidiaries or solely among the Company’s Subsidiaries or the authorization and issuance of the Preferred Shares in accordance with this Agreement and the Certificate of Designations and any Conversion Shares, redeem reclassify, split, combine, subdivide or redeem, repurchase, purchase or otherwise acquireacquire or amend the terms of, except in connection with the Chapter 11 Plandirectly or indirectly, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible intoother equity or voting interest, other than (A) the acquisitions of shares of Common Stock in connection with the surrender of shares of Common Stock by holders of Options in order to pay the exercise price of such Options, (B) the withholding of shares of Common Stock to satisfy tax obligations incurred in connection with the exercise of Options and the settlement of Company RSUs or any rightsCompany PSUs, warrants and (C) the acquisition by the Company of Options, Company RSUs or options to acquireCompany PSUs in connection with the forfeiture of such awards, any such capital stock at less than fair market valueand for (A), (B) and (C) in each case in accordance with their terms in effect as of the date of this Agreement;
(ciii) acquire issue, sell, deliver or agree or commit to acquire issue, sell or deliver (iwhether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Company Securities, except (A) as required by merging the terms of any employment agreements or consolidating withany award agreements with respect to, and upon the exercise or settlement of, Options, Company RSUs or Company PSUs, in each case, in effect on the date of this Agreement; (B) in accordance with the terms of the Company Emergence Warrants and Company Warrant Transactions; and (C) in accordance with the terms of the Company Convertible Notes;
(iv) amend the Company Charter Documents (other than filing the Certificate of Designations as provided hereunder);
(v) revalue any of its material assets or materially change the Company’s or its Subsidiaries’ methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP, Regulation S-X of the Exchange Act (or any interpretation thereof), or by purchasing any Governmental Entity;
(vi) (only with respect to the Company’s Significant Subsidiaries (as defined in Rule 1.02(w) of Regulation S-X), propose or adopt a substantial portion plan of the stockcomplete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other ownership interests inreorganization;
(vii) (A) acquire, in a single transaction or substantial portion a series of assets ofrelated transactions, any business or Person, by merger or consolidation, purchase of assets, properties, claims or rights or equity interests, or by any other manner, any business other than (1) transactions (x) solely among the Company and one or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof more of its wholly owned Subsidiaries or (iiy) any assets in excess solely among the Company’s wholly owned Subsidiaries and (2) acquisitions of five hundred thousand dollars ($500,000) in any individual transaction inventory or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(dviii) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any transaction that would be prohibited by Section 2.2(b) of the foregoingFramework Agreement, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between assuming such provision were binding on the Company and its Subsidiaries as of the date of this Agreement;
(ix) enter into any joint venture, limited liability corporation or similar arrangement with any third Person;
(x) (A) incur, assume or suffer any Indebtedness (including any long-term or short-term debt) or issue any debt securities, except (1) for trade payables incurred in the ordinary course of business consistent with past practice; (2) for loans or advances to direct or indirect wholly owned Subsidiaries of the Company; (3) indebtedness under the Company ABL Credit Agreement to meet ordinary course working capital requirements; (4) Indebtedness not in excess of $10,000,000 related to obligations under capital leases; (5) letters of credit issued and maintained in the ordinary course of business consistent with past practice to the extent undrawn; and (6) Indebtedness that, taken together with all other Indebtedness incurred, assumed, or between such suffered after the date of this Agreement, is not in excess of $25,000,000; (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except with respect to obligations of direct or indirect wholly owned Subsidiaries or of the Company; (iiC) make any loans, advances or capital contributions to, or investments in, any other individual or entityPerson, except for (Ax) loansextensions of credit to customers and advances to directors, advances or capital contributions (1) between the Company officers and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances other employees, in each case, in the ordinary course of business consistent with past practice;
practice and (ey) other than any loans, advances, contributions to, or investments in connection with the repair Company’s direct or replacement of asset indirect wholly owned subsidiaries or among wholly owned Subsidiaries of the Company Company; or its Subsidiaries in the ordinary course of business consistent with past practice, make (D) mortgage or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind pledge any material election relating to Taxesassets, settle tangible or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statementsintangible, or amend create or suffer to exist any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate lien thereupon (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesPermitted Liens), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(ixi) agree agree, authorize, resolve or otherwise commit recommend, whether in writing or otherwise, to do, or take any action reasonably likely to lead to or result in, any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 2 contracts
Samples: Investment Agreement (RingCentral, Inc.), Investment Agreement (Avaya Holdings Corp.)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to and continuing until the earlier of the Effective Date termination of this Agreement pursuant to ARTICLE VII and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (Date, except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, Visant will, and will cause Xxx Xxxxxxxx and the Transferred Subsidiaries to, maintain the corporate existence of Xxx Xxxxxxxx and the Transferred Subsidiaries, conduct the respective businesses and operations of Xxx Xxxxxxxx and the Transferred Subsidiaries and the Business in the Ordinary Course (bincluding the collection of receivables and the payment of payables) to the extent consistent therewith, use commercially and make all reasonable best efforts to (i) keep available preserve intact such businesses and operations and the services of their current executive officers, and (ii) preserve substantially intact the commercial Business’s relationships with customers, suppliersvendors, distributors agents, employees and others that are material to the Company or its Subsidiaries, consistent other Persons with past practice as conducted prior to the date of this Agreementwhom they have business relations. Without limiting the generality of the foregoing, except as expressly provided in this Agreement (1) as otherwise expressly required or permitted by this Agreementincluding actions taken pursuant to the Reorganization Transactions), (2) as required by law, (3) for actions approved the terms of any written Contracts to which Xxx Xxxxxxxx or any of the Transferred Subsidiaries is a party or by the Requisite Investors current arrangement with Savvis Communications Corporation, by Law, including under an Order, or in writing (Section 5.1 of the Visant Disclosure Schedule, prior to the earlier of the termination of this Agreement pursuant to ARTICLE VII and the Closing Date, Visant covenants that it will not, and will cause its Affiliates not to, with respect to Xxx Xxxxxxxx and the Transferred Subsidiaries and the Business, without the prior written consent of Buyer, which approval shall consent will not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) merge or consolidate Xxx Xxxxxxxx or any of the Transferred Subsidiaries with any other Person, cause Xxx Xxxxxxxx or any of the Transferred Subsidiaries to acquire any operation, business or assets having a value in excess of $250,000 in the aggregate from any other Person (other than (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends inventory and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) supplies in the aggregate during the Pre-Closing Period Ordinary Course or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock expenditures committed to as of the Company date hereof as set forth in Section 5.1(a) of the Visant Disclosure Schedule), or restructure, reorganize or completely or partially liquidate Xxx Xxxxxxxx or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesof the Transferred Subsidiaries;
(b) issue, deliver, grant, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any equity securities of Xxx Xxxxxxxx or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuethe Transferred Subsidiaries;
(c) acquire make any loans, advances or agree capital contributions to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) investments in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practicePerson;
(d) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of Xxx Xxxxxxxx’x capital stock;
(e) (i) amend or modify any Material Contract with a customer in any material respect in a manner adverse to Xxx Xxxxxxxx and the Transferred Subsidiaries or the Business, (ii) amend or modify any Material Contract that is not with a customer in any material respect or in a manner adverse to Xxx Xxxxxxxx and the Transferred Subsidiaries or the Business, or (iii) terminate any Material Contract prior to its scheduled expiration, waive any material rights, claims or obligations under or relating to any Material Contract, or cancel, modify or waive any debts or claims held by it thereunder, or waive any rights having in the aggregate a value in excess of $250,000 thereunder;
(f) enter into any Contract containing a “non-compete”, “non-solicitation”, “most favored nation”, “exclusivity” or any other provision that would be likely to have any such similar effects that would restrict Xxx Xxxxxxxx or any of its Affiliates after the Closing;
(g) accelerate in any material respect the delivery or sale of products or services or, other than in the Ordinary Course, make changes in any material respect with respect to any selling, service-level, credit or product/service discount principles, practices, methods or policies;
(h) other than in the Ordinary Course with respect to Contracts with customers or suppliers (and in the case of suppliers, so long as such Contract is terminable by Xxx Xxxxxxxx or any Transferred Subsidiary on 60 days’ or less notice and without cost), enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement;
(i) amend, modify in any material respect or terminate any Insurance Policy or waive any material rights, claims or obligations under or relating to any Insurance Policy;
(j) enter into any Contract that would have been subject to disclosure pursuant to Section 3.24 had it been entered into prior to the date of this Agreement;
(k) enter into, amend or modify any labor Contracts (other than oral Contracts that are immaterial), collective bargaining agreements, letters of understanding or other arrangements with any union or labor organization covering any Employees;
(l) accelerate in any material respect or otherwise alter in any material respect the timing of the payment of any accounts receivable of Xxx Xxxxxxxx or any of the Transferred Subsidiaries or delay in any material respect the payment of any Accounts Payable or accrued expenses of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(m) sell, assign, transfer, convey, lease, license, pledge, mortgage, surrender, divest, cancel, allow to lapse or expire, abandon, encumber or otherwise dispose of any assets of Xxx Xxxxxxxx, the Transferred Subsidiaries or the Business that have a fair market value that is in excess of $250,000, in the aggregate, including capital stock, other than in the Ordinary Course;
(n) except as provided pursuant to existing written, binding Contracts or Benefit Plans in effect prior to the date of this Agreement and set forth in Section 5.1(n) of the Visant Disclosure Schedule, or as otherwise required by applicable Law, (i) grant or provide any severance or termination payments or benefits to any director or officer or Employee of Xxx Xxxxxxxx or any of the Transferred Subsidiaries, (ii) increase the annual cash compensation (by an amount greater than 2.5% thereof), bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of Xxx Xxxxxxxx or any of the Transferred Subsidiaries, (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or (vi) forgive any loans to directors, officers or Employees of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(o) terminate any lease with respect to Real Property or enter into, amend or renew any such lease;
(p) amend, modify or alter the terms of the Xxx Xxxxxxxx Indebtedness;
(q) incur any indebtedness for borrowed money Indebtedness or guarantee any such indebtedness Indebtedness of another individual any other Person, or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities security of Xxx Xxxxxxxx or any of the CompanyTransferred Subsidiaries;
(r) create or incur any Encumbrances on any assets or properties of Xxx Xxxxxxxx or any of the Transferred Subsidiaries or the Business other than Permitted Encumbrances (except for clause (g) of the definition of Permitted Encumbrances);
(s) except as set forth in the capital budgets set forth in Section 5.1(s) of the Visant Disclosure Schedule and consistent therewith, guarantee make, authorize or incur any debt securities capital expenditures or commitments for capital additions or improvements under which payment or expenditure obligations exceed $250,000 in the aggregate;
(t) pay, prepay, settle, discharge or satisfy any Liability of another individual or entitymore than $150,000, other than as set forth in Section 5.1(t) of the Visant Disclosure Schedule;
(u) enter into any "keep well" settlement, concession, conciliation or similar agreement (i) involving payment or receipt of payment after the execution of this Agreement of consideration in excess of $150,000 in any individual case, or $250,000 in the aggregate, or (ii) on a basis that would result in (A) the imposition of any order, writ, judgment, injunction, indictment, demand, decree, stipulation, determination or award by any Governmental Entity that would restrict in any material respect the future activity or conduct of Xxx Xxxxxxxx or any of the Transferred Subsidiaries or (B) an admission of a violation of Law or violation of the rights of any Person by Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(v) amend the certificate of incorporation, bylaws, or such comparable governing documents of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(w) issue, amend the terms of, declare, set aside, make or pay any dividends or make any other agreement to maintain payment or distribution of any financial statement condition kind with respect to, any of another Person Xxx Xxxxxxxx’x or any Transferred Subsidiaries’ equity securities or enter into any arrangement having Contract with respect to the economic effect voting of such equity securities;
(x) make any changes in accounting methods, policies, procedures, principles or practices unless required by GAAP;
(y) change its method of Tax accounting or make or change any material Tax election, or settle or finally resolve any Tax contest with respect to any material amount of Tax; or
(z) agree, authorize or commit, whether in writing or otherwise, to do any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Visant Corp), Stock Purchase Agreement (RR Donnelley & Sons Co)
Conduct of the Business. Except as otherwise (va) required by lawFrom the date hereof through the Closing Date, each of the Company Group and the Purchaser Parties shall, except to the extent that Parent (w) disclosed in the Disclosure Statement, (xcase of the Company Group) required by this Agreement or the Chapter 11 Plan or Company (yin the case of the Purchaser Parties) consented to shall otherwise consent in writing by Requisite Investors (such which consent shall not to be unreasonably withheld, delayed conditioned or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated delayed) or as set forth in accordance with its terms (the “Pre-Closing Period”) (except Schedule 7.1 or as otherwise expressly provided or permitted contemplated by the terms of this Agreement), the Company and conduct its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses business only in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior and shall use its commercially reasonable efforts consistent with past practice to the date of this Agreementpreserve intact its business relationships with employees, clients, suppliers and other third parties. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreementfrom the date hereof until and including the Closing Date, (2) as required by law, (3) for actions approved by without the Requisite Investors in writing prior written consent (which approval shall not be unreasonably withheld, conditioned or delayed) of the Parent (in the case of the Company Group) or the Company (in the case of the Purchaser Parties), or (4) and except as set forth in Schedule 4.77.1 or as contemplated by this Agreement, during the Pre-Closing Period, none of the Company shall not, and shall cause its Subsidiaries not toGroup or the Purchaser Parties shall:
(ai) except as expressly contemplated by this Agreement, amend, modify or supplement its Organizational Documents;
(ii) amend, waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way, any Contract, or any other right or asset of such Person which involve payments to such Person in excess of $250,000;
(iii) modify, amend or enter into any contract, agreement, license or commitment, which obligates the payment by such Person of more than $500,000 (individually or in the aggregate);
(iv) make any capital expenditures in excess of $1,000,000 (individually or in the aggregate);
(v) sell, lease, license or otherwise dispose of any of the assets or assets of such Person or covered by any Contract except (i) declarepursuant to existing contracts or commitments disclosed herein and (ii) sales of Inventory in the ordinary course consistent with past practice;
(vi) accept returns of products sold from Inventory except in the ordinary course consistent with past practice;
(vii) pay, set aside declare or promise to pay any dividends onor other distributions with respect to its capital stock, or make pay, declare or promise to pay any other distributions payments to any stockholder of such Person (other than, in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock case of any wholly-owned direct Stockholder that is an employee, payments of salary accrued in said period at the current salary rate set forth on Schedule 5.25(a)) or indirect Subsidiary any Affiliate of such Person;
(viii) authorize any salary increase of more than 10% for any employee making an annual salary equal to or greater than $100,000 or in excess of $100,000 in the aggregate on an annual basis or change the bonus or profit sharing policies of such Person;
(ix) obtain or incur any loan or other Indebtedness in excess of $1,000,000, including drawings under the Company Group’s existing lines of credit;
(x) suffer or incur any Lien, except, in the case of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchaseGroup, redeem or otherwise acquirefor Permitted Liens, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any on such shares or other securitiesPerson’s assets;
(bxi) issuesuffer any damage, deliver, grant, sell, pledge, dispose destruction or loss of or otherwise encumber property related to any of its capital stock such Person’s assets, whether or not covered by insurance, the aggregate value of which, following any securities convertible intoavailable insurance reimbursement, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueexceeds $2,000,000;
(cxii) merge or consolidate with or acquire any other Person (or agree assets constituting the business of another Person) or be acquired by (or sell or otherwise dispose of assets constituting a business to) any other Person;
(xiii) cause any insurance policy protecting any of such Person’s assets to acquire lapse;
(ixiv) by merging make any change in its accounting principles, other than in accordance with applicable accounting policies or consolidating withmethods, or by purchasing a substantial portion write down the value of the stock, any Inventory or assets other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory than in the ordinary course of business consistent with past practice;
(dxv) change its principal place of business or jurisdiction of organization;
(ixvi) incur extend any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants loans other than travel or other rights expense advances to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances employees in the ordinary course of business consistent with past practicenot to exceed $50,000 individually or $250,000 in the aggregate;
(exvii) 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, other than in connection with (x) the repair or replacement issuance of asset of Company Options pursuant to the Company Plan as in effect on the date hereof, (y) the issuance of shares of Company Common Stock upon exercise of Company Options, and (z) conversions or its Subsidiaries redemptions of Parent Ordinary Shares in accordance with Parent’s Organizational Documents as in effect on the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Perioddate hereof;
(fxviii) make, make or change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, election or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make change any annual or long-term incentive awardsTax accounting periods; or
(xix) agree to do any of the foregoing.
(b) Neither the Company Group nor the Purchaser Parties shall (i) take or agree or otherwise commit to take any action that might make any representation or warranty of such party inaccurate or misleading in any respect at, or as of any time prior to, the actions set forth 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 the foregoing subsections (a) through (h) of this Section 4.7any respect at any such time.
Appears in 1 contract
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to through the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Date, the Shareholder shall and shall cause the Company and its Subsidiaries shall use their respective commercially reasonable efforts to to: (ai) conduct their businesses the Business and own, operate and use the Company's assets in the ordinary course in all material respects as conducted at consistent with past practice; (ii) use their best efforts to preserve the date present business organizations and relationships of this Agreementthe Company (including, without limitation, with customers, clients, vendors, suppliers, employees and (bothers) with respect to the extent consistent Business and the Company's assets and all of the goodwill associated therewith, ; (iii) use commercially reasonable their best efforts to (i) keep available the services of the present employees of the Company who are actively involved in the Business; (iv) use their current executive officersbest efforts to preserve the material rights and franchises of the Company which are part of the Company's assets; (v) not take any action that could reasonably be expected to or would have an adverse effect on the Business or any of the Company's assets or would materially impair, and hinder or adversely affect the ability of the Company or the Shareholder to consummate the transactions contemplated hereby, the Shareholder Employment Agreement or the Non-Competition Agreement; (iivi) preserve substantially intact deliver to the commercial relationships with customers, suppliers, distributors and others that are material Purchaser a copy of each written notice sent or received under the any Personal Property Lease; (vii) deliver to the Purchaser a copy of each written notice or communication from any Governmental Entity or Regulatory Authority relating to the Company or its Subsidiaries, consistent with past practice as conducted prior Business; (viii) perform all material obligations under the Personal Property Leases and Contracts; and (ix) deliver to the date of this Agreement. Purchaser all material notices and communications with respect to the Business from customers, clients, suppliers, vendors and third parties.
(b) Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by from the date of this AgreementAgreement through the Closing Date, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval Shareholder shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, and shall not permit the Company shall not, and shall cause its Subsidiaries not to:
(a) : (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, transfer, dispose of or otherwise encumber or suffer or permit to exist any Lien on any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or Company's assets; (ii) hire any assets in excess of five hundred thousand dollars ($500,000) in new employees or fire any individual transaction current employees without cause, or one million dollars ($1,000,000) in increase any compensation or benefit payable or provided to any employee who is employed by the aggregate during the Pre-Closing PeriodCompany, except purchases pursuant to a Legal Requirement or Contract and which increase, if any, shall not be greater than in accordance with the Company's past practices; (iii) enter into, amend or terminate any Contract without the prior written consent of suppliesthe Purchaser or take or fail to take any action within the reasonable control of the Shareholder or Company that would constitute a breach of or default under (without regard to any notice or passage of time or both) any Contract; (iv) enter into, equipment and inventory amend, modify or adopt any Benefit Plan, except as may otherwise be required pursuant to any applicable Legal Requirement; (v) waive any claims or rights of value with respect to any of the Company's assets or the Business, other than in the ordinary course of business consistent with past practice;
practices; (dvi) change any accounting principle, or method, practice or procedure, or make, amend or revoke any Tax election; (ivii) amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Personal Property Lease or Contract or Authorization without the prior written consent from the Purchaser, which consent will not be unreasonably withheld or delayed; (viii) exercise any right or option under any Personal Property Lease or any Contract or extend or renew any Personal Property Lease or any Contract; (ix) make any distribution or dividend of any kind including of any of the Company's assets to the Shareholder or any other Person,; (x) incur any indebtedness for borrowed money other than borrowings for working capital purposes under existing credit facilities in the ordinary course of business and consistent with past practices; (xi) purchase any property or guarantee any such indebtedness of another individual assets from the Shareholder or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for Shareholder's Affiliates; (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (iixii) make any loansloan, advances or capital contributions to, or investments in, any other individual Person (other than customary loans or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances to employees in the ordinary course of business consistent accordance with past practice;
practices); (exiii) other than pay, discharge or satisfy before it is due any claim or liability, or fail to pay any such item in connection with the repair a timely manner; (xiv) accelerate or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) otherwise change in any individual expenditure material manner the Company's practice of collecting accounts receivable; or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1xv) enter into any newContract, agreement, commitment or arrangement to do, or amend take, or terminate agree (other than amendments required to maintain the tax qualified status of such plans under the Code orally or in the ordinary course of business consistent with past practiceswriting) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take or consent to, any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business. Except as otherwise To and including the Closing Date, except with the consent of Buyer (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such which consent will not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement as contemplated pursuant to the earlier Restructuring Plan or as expressly contemplated by this Agreement: (a) the Selling Companies will conduct the Business in the Ordinary Course of the Effective Date Business and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and applicable Law; (b) to the extent consistent therewith, each Selling Company will (i) use commercially reasonable efforts to (i) preserve its respective business organization and goodwill, keep available the services of their current executive its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii) preserve substantially intact subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the commercial relationships general status of ongoing operations relating to the Business as requested by Buyer and (iii) except as required by applicable Laws or contract, not take any action that would render, or that reasonably may be expected to render, any representation or warranty made by the Selling Companies in this Agreement untrue; (c) except with customersthe consent of Buyer or in the Ordinary Course of Business, suppliersthe Selling Companies will not use extraordinary selling efforts that would have the effect of 36 Table of Contents accelerating sales in the Business prior to the time reasonably expected, distributors through offering of discounts, shipment of goods prior to anticipated shipping dates or otherwise; (d) the Selling Companies will not permit any accounts payable related to the Business owed to trade creditors to remain outstanding more than 60 days; (e) the Selling Companies will not enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary or benefits increases, severance or termination pay to, any officers, directors, managers, employees or consultants employed by the Business, except in the Ordinary Course of Business; (f) and others the Selling Companies will not, except in the Ordinary Course of Business, (whether directly or indirectly) sell, transfer, license, abandon, let lapse, disclose, misuse, misappropriate, diminish, destroy, encumber, or otherwise dispose of or encumber any Acquired Intellectual Property that are material is necessary to carry on the Business as currently conducted by the Company or its Subsidiaries, consistent with past practice as conducted prior assert or threaten to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors assert any rights in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay Acquired Intellectual Property against any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7third party.
Appears in 1 contract
Samples: Master Asset Purchase Agreement
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in In connection with the Disclosure Statement, (x) required by this Agreement Assets or the Chapter 11 Plan or (y) consented Business, Seller agree to observe each term set forth in writing by Requisite Investors (such consent not to be unreasonably withheldthis Section 6.11 and agree that, delayed or conditioned), during the period from the date of this Agreement hereof until the Closing Date, unless otherwise consented to the earlier of the Effective Date by Buyer in writing:
(1) The Business shall be conducted only in, and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (Seller shall not take any action except as otherwise expressly provided or permitted by the terms of this Agreement)in, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this AgreementSeller’s business, and Seller’s past custom and practice;
(b2) Seller shall not, directly or indirectly, do or permit to occur any of the following insofar as they relate to the extent consistent therewith, use commercially reasonable efforts to Business or the Assets: (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital the Assets, except in the ordinary course of business; (ii) acquire (by merger, exchange, consolidation, acquisition of stock or any securities convertible into, assets or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(cotherwise) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company venture or other entity business organization or division thereof or material assets thereof; (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (iiii) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities except the borrowing of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or working capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business and consistent with past practice; or (iv) enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with respect to any of the matters set forth in this Section 6.11(2);
(e3) other Seller shall not cancel or terminate its current insurance policies covering the Assets and the Business, or cause any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(4) Seller shall (i) use its best efforts to preserve intact the organization and goodwill of the Business, keep available the services of Seller’s officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with Seller in connection with the repair Business; (ii) confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations with respect to the Business; (iii) not intentionally take any action which would render, or replacement which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at the Closing; (iv) notify Buyer of asset any emergency or other change in the normal course of the Company Business or its Subsidiaries in the ordinary course operation of business consistent with past practicethe properties of the Business and of any governmental or third party complaints, make investigations or incur hearings (or communications indicating that the same may be contemplated) if such emergency, change, complaint, investigation or hearing would be material, individually or in the aggregate, to the business, operations or financial condition of Seller or to Seller’s or Buyer’s ability to consummate the transactions contemplated by this Agreement; and (v) promptly notify Buyer in writing if Seller shall discover that any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) representation or warranty made by it in this Agreement was when made, or has subsequently become, untrue in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodrespect;
(f5) makeSeller shall (i) file any Tax returns, change elections or rescind information statements with respect to any material election liabilities for Taxes of Seller or other matters relating to Taxes, settle or compromise any material Tax liability for an amount greater than Taxes of Seller which affect the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or Assets and pursuant to promotionsapplicable law must be filed prior to the Closing Date relating to periods prior to the Effective Time; (ii) promptly upon filing, in each case consistent with past practice provide copies of any such Tax returns, elections or information statements to Buyer; (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4iii) make any annual such Tax elections or long-term incentive awardsother discretionary positions with respect to Taxes taken by or affecting Seller only upon prior consultation with and consent of Buyer; or
and (iiv) agree or otherwise commit to take not amend any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7Return.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from From and after the date hereof until the Closing Date, each of this Agreement to the earlier of the Effective Date ACP Holding and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms Company shall, and shall cause each of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) and Affiliates to, conduct their businesses its business in the ordinary course in all material respects as conducted at the date of this Agreementconsistent with past practice, and (b) to the extent consistent therewith, shall use commercially reasonable its best efforts to (i) preserve intact the business organizations and relationships with third parties and to keep available the services of their current executive officersthe present employees of ACP Holding, and (ii) preserve substantially intact the commercial relationships with customersNFC Castings, suppliers, distributors and others that are material to the Company or its and the Company's Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreementfrom the date hereof until the Closing Date, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, each of ACP Holding and the Company shall not, will not and shall will cause each of its Subsidiaries and Affiliates not to:
(a) (i) declareamend its charter, set aside bylaws or pay any dividends on, or make any other distributions in respect of, any of its capital stock comparable organizational documents other than dividends and distributions in respect accordance with this Agreement or amend or waive any provisions of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesTransaction Documents;
(b) issue, deliver, grant, sell, pledge, dispose acquire a material amount of or otherwise encumber assets from any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueother Person;
(c) acquire issue shares or agree to acquire other securities except in compliance with the Plan;
(d) sell, lease, license or otherwise dispose of any properties except (i) by merging pursuant to existing contracts or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or commitments and (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(de) change its methods of accounting, except as required by changes in GAAP;
(i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoingadditional indebtedness, except for (A) borrowings and increases in letters of credit as permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries Plan, or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entityPerson (excluding any Subsidiary), except for (A) loans, advances or capital contributions (1) between as permitted under the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax ReturnPlan;
(g) adoptexcept as otherwise permitted under the Plan, modify the compensation or benefits of, or enter into hire any newemployees, except for increases or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code hirings in the ordinary course of business consistent with past practices) practice; provided that any existing, Company Plans, arrangements modification to the compensation or programs, severance agreement, deferred compensation arrangement benefits or employment agreement hiring of any employee with any officers, directors a base salary in excess of $120,000 per year or employees, (2) grant any increases in employee compensation, other than in holding a position of at least vice president shall require the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsprior written consent of the Investors; or
(ih) agree or otherwise commit to take do any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 1 contract
Conduct of the Business. Except as otherwise Pending Closing. Between the ---------------------------------------- date hereof and the Closing hereunder CND shall, and the Shareholders with respect to subsections (v) required by lawe), (w) disclosed in the Disclosure Statementi), (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditionedl), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreemento), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (ap) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (bq) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not CND to:
(a) (i) declare, set aside not take or pay suffer or permit any dividends on, or make any other distributions in respect of, action which would render untrue any of its capital stock other than dividends and distributions in respect the representations or warranties of the capital stock Shareholders and CND herein contained, and not omit to take any action, the omission of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire which would render untrue any such shares representation or other securitieswarranty;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of conduct its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuebusiness in a good and diligent manner in the ordinary and usual course;
(c) acquire not enter into any contract, agreement, commitment or agree to acquire (i) by merging or consolidating witharrangement with any party, or by purchasing a substantial portion other than contracts for the provision of services and contracts for the stock, or other ownership interests in, or substantial portion purchase of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment materials and inventory supplies in the ordinary and usual course of business consistent business, and, except as may be required to comply with past practicethe terms hereof, not amend, modify or terminate any Real Property Lease, Personal Property Lease or Material Contract without the prior written consent of Purchaser;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights use their best efforts to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoingpreserve CND s business organization intact, except for (A) borrowings as may be required to comply with the terms hereof, to keep available the services of its employees, and increases in letters of credit permitted under the DIP Credit Agreement to preserve its relationships with customers, suppliers and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent others with past practicewhom it deals;
(e) not reveal, orally or in writing, to any party, other than in connection with the repair or replacement of asset Purchaser and Purchaser s authorized agents, any of the Company business procedures and practices, intellectual property or its Subsidiaries trade secrets followed or utilized by CND in the ordinary course conduct of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodits business;
(f) make, maintain in full force and effect all of the insurance policies listed on Schedule 4.21 and make no change or rescind in any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than insurance coverage without the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Returnprior written consent of Purchaser;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreementkeep the premises occupied by CND and all of CND s equipment and other tangible personal property in good order and repair and perform all necessary repairs and maintenance;
(1h) enter into any new, or amend or terminate (other than amendments required continue to maintain the tax qualified status all of such plans under the Code CND s usual business books and records in the ordinary course accordance with its past practices and not change its method of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; oraccounting;
(i) not issue any capital stock or any option, warrant or right relating thereto;
(j) not waive any right or cancel any claim;
(k) not increase the compensation or rate of compensation payable to any of CND s employees without the prior written consent of Purchaser;
(l) maintain CND s corporate existence and not merge or consolidate CND with any other entity;
(m) except as may be required to comply with the terms hereof, comply with all provisions of all Real Property Leases, Personal Property Leases and Material Contracts and all applicable laws, rules and regulations;
(n) not make any capital expenditure;
(o) neither discuss nor negotiate with any other person the sale or other transfer of the Assets, or the capital stock of CND;
(p) not amend its articles of incorporation or bylaws;
(q) not agree or otherwise commit to take any action in violation or contravention of the actions set forth foregoing provisions of Section 6.10; and
(r) not to omit to take any action in violation or contravention of the foregoing subsections (a) through (h) provisions of this Section 4.76.10.
Appears in 1 contract
Conduct of the Business. (a) Except as for matters set forth in Section 5.02 of the Schedules or matters otherwise (v) permitted or required by law, (w) disclosed in the Disclosure Statement, (x) required by terms of this Agreement or the Chapter 11 Plan or (y) consented to in writing except as required by Requisite Investors (such consent not to be unreasonably withheldApplicable Law, delayed or conditioned), during the period from the date of this Agreement to the earlier of Closing Date, Seller shall cause the Effective Date and the date on which this Agreement is terminated in accordance with its terms Companies to (the “Pre-Closing Period”i) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses business in the ordinary course in all material respects as conducted at the date Ordinary Course of this AgreementBusiness, and (bii) to the extent consistent therewith, use commercially reasonable efforts to (i) keep intact their business, keep available the services of their current executive officers, employees and (ii) preserve substantially intact the commercial their relationships with customers, suppliers, licensors, licensees, distributors and others that are material to with whom they deal and (iii) maintain and renew (or replace with policies providing substantially similar coverage), if necessary, all insurance policies listed on Section 3.22 of the Schedules and all insurance policies not held in the name of the Companies but which cover the assets and operations of the business of either Company or its Subsidiaries, consistent with past practice as conducted prior to and the date employees of this Agreement. Without either Company.
(b) In addition (and without limiting the generality of the foregoing), except (1) as set forth in Section 5.02 of the Schedules or otherwise expressly permitted or required by the terms of this Agreement or permitted by this Agreement, (2) except as required by lawApplicable Law, (3) for actions approved by Seller, with respect to any of the Requisite Investors in writing Companies, shall not do, and shall cause each Company not to do, any of the following without the prior written consent of Buyer (which approval consent shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:):
(a) (i) declare, set aside amend its certificate of incorporation or pay any dividends on, by-laws or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or similar governing instruments;
(ii) purchase, redeem or otherwise acquire, except issue any equity interest in connection with the Chapter 11 Plan, any shares of capital stock of the Company Companies or any other securities thereof option, warrant or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock right relating thereto or any securities convertible into, into or exchangeable for any rights, warrants or options to acquire, equity interest in any such capital stock at less than fair market valueof the Companies;
(ciii) adopt or amend in any material respect any material Plan (or any plan that would be a Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by any existing agreement or Plan; provided that the foregoing shall not restrict any Company from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the Ordinary Course of Business, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(iv) grant to any executive officer any increase in compensation or benefits, except as may be required under any existing agreement or Plan; provided that the foregoing shall not restrict any Company from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the Ordinary Course of Business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(v) recognize any labor union or other employee representative, or enter into any collective bargaining agreement, except as required by Applicable Laws;
(vi) permit, allow or suffer any of its assets to become subjected to any Lien other than Permitted Liens or under the terms of Debt that will be repaid (and the related liens released) at Closing;
(vii) (A) make any loan, redeem or purchase any equity interests of either Company, or (B) make any loans, advances or capital contributions to, or invest in, any other Person, except for employee advances for expenses in the Ordinary Course of Business;
(viii) pay, loan or advance any amount to, or enter into any agreement or arrangement with, Seller or any of its Affiliates, except for (A) transactions between the Companies, (B) dividends and distributions or transfers of cash to equity holders of the Companies, (C) intercompany transactions in the Ordinary Course of Business and (D) payments, loans or advances made pursuant to existing agreements;
(ix) cancel any material debts owed to or waive any material Claims or rights of the Companies;
(x) fail to pay accounts payable and other obligations when they become due and payable in the Ordinary Course of Business other than those disputed in good faith;
(xi) fail to make any capital expenditure or commitment that would be reasonably necessary to operate the Companies in the Ordinary Course of Business, or make or commit to make any material capital expenditure or commitment outside the Ordinary Course of Business not planned as of the date of this Agreement;
(xii) change any material method of accounting, accounting practice or policy of a Company; settle or compromise any material Tax liability of a Company; make or change any material Tax election of a Company; or consent to any extension or waiver of the limitation period applicable to any material Tax Claim or assessment of a Company; provided that, for the avoidance of doubt, Seller shall not make any election under Treasury Regulation Section 301.7701-3(c) with respect to any Company;
(xiii) cause any material change in the accounting methods or practices, collection policies, pricing policies or payment policies used by any of the Companies other than in the Ordinary Course of Business;
(xiv) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, equity interests or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (ii) otherwise acquire any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction other than inventory or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases Ordinary Course of supplies, equipment and inventory in the ordinary course of business consistent with past practiceBusiness;
(dxv) (i) incur sell, lease, license or otherwise dispose of any indebtedness for borrowed money of its assets, except inventory and obsolete or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants excess equipment or other rights to acquire assets sold or disposed of in the Ordinary Course of Business;
(xvi) amend or terminate any debt securities of the Company, guarantee any debt securities of another individual or entityMaterial Contract, enter into any "keep well" or other agreement Contract that would be a Material Contract if entered into prior to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions todate hereof, or investments inwaive or assign any material right under any Material Contract, any other individual including grants of Intellectual Property rights by assignment, license or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practiceotherwise;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1xvii) enter into any newlease of real property, except any renewals of existing leases or amend Mining Rights or terminate (other than amendments required to maintain the tax qualified status acquisitions of such plans under the Code new Mining Rights in the ordinary course Ordinary Course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsBusiness; or
(ixviii) authorize any of, or commit or agree to take, whether in writing or otherwise commit to take otherwise, any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7actions.
Appears in 1 contract
Conduct of the Business. Except as otherwise To and including the Closing Date, except with the consent of Buyer (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such which consent will not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement as contemplated pursuant to the earlier Restructuring Plan or as expressly contemplated by this Agreement:
(a) the Selling Companies will conduct the Business in the Ordinary Course of the Effective Date Business and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and applicable Law;
(b) to the extent consistent therewith, each Selling Company will (i) use commercially reasonable efforts to (i) preserve its respective business organization and goodwill, keep available the services of their current executive its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii) preserve substantially intact subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the commercial relationships with customers, suppliers, distributors and others that are material general status of ongoing operations relating to the Company or its Subsidiaries, consistent with past practice Business as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, requested by Buyer and (iii) except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by lawapplicable Laws or contract, (3) for actions approved not take any action that would render, or that reasonably may be expected to render, any representation or warranty made by the Requisite Investors Selling Companies in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuethis Agreement untrue;
(c) acquire except with the consent of Buyer or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during Ordinary Course of Business, the Pre-Closing Period, except purchases Selling Companies will not use extraordinary selling efforts that would have the effect of supplies, equipment and inventory Table of Contents accelerating sales in the ordinary course Business prior to the time reasonably expected, through offering of business consistent with past practicediscounts, shipment of goods prior to anticipated shipping dates or otherwise;
(d) (i) incur the Selling Companies will not permit any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights accounts payable related to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement Business owed to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practicetrade creditors to remain outstanding more than 60 days;
(e) other than in connection with the repair Selling Companies will not enter into or replacement of asset of modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary or benefits increases, severance or termination pay to, any officers, directors, managers, employees or consultants employed by the Company or its Subsidiaries Business, except in the ordinary course Ordinary Course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing PeriodBusiness;
(f) makeand the Selling Companies will not, change except in the Ordinary Course of Business, (whether directly or rescind indirectly) sell, transfer, license, abandon, let lapse, disclose, misuse, misappropriate, diminish, destroy, encumber, or otherwise dispose of or encumber any material election relating Acquired Intellectual Property that is necessary to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability carry on the most recent Financial Statements, Business as currently conducted by the Company or amend assert or threaten to assert any material Tax Return;rights in Acquired Intellectual Property against any third party.
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend the Company will not cancel or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take its current insurance policies insuring any of the actions set forth Acquired Assets or allow any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in the foregoing subsections (a) through (h) of this Section 4.7full force and effect.
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Franklin Covey Co)
Conduct of the Business. Except as otherwise (v) required by lawSellers agree to observe each item set forth in this Section 6.01 and agree that, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Closing Date, unless otherwise consented to the earlier of the Effective Date and the date on by Buyer in writing, which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to not be unreasonably withheld:
(a) conduct their businesses in The Business shall be conducted only in, and Sellers shall not take any action except in, the ordinary course of the Business, on commercially reasonable terms and in accordance in all material respects as conducted at the date of this Agreement, with all applicable Governmental Regulations and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, Sellers' past custom and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreementpractice. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval Sellers shall not be unreasonably withheld, conditioned perform any act referenced by (or delayed), or (4omit to perform any act which omission is referenced by) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any terms of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;Section 4.07.
(b) issueSellers shall not, deliverdirectly or indirectly, grantdo or permit to occur any of the following insofar as they relate to the Business or the Assets: (i) acquire (by merger, sellexchange, pledgeconsolidation, dispose acquisition of stock or assets or otherwise) any other Person or equity interest in or material assets of any other Person; (ii) accelerate or otherwise encumber modify its practices with respect to the collection of accounts receivable or its billing arrangements; or (iii) delay or otherwise modify its practices with respect to the payment EXECUTION DRAFT of accounts payable or trade or other obligations; or (iv) enter into or propose to enter into any agreement, arrangement or understanding with respect to any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuethe matters set forth in this Section 6.01(b);
(c) acquire or agree Sellers shall use commercially reasonable efforts to acquire (i) by merging or consolidating with, or by purchasing a substantial portion preserve intact its organization and the Goodwill of the stockBusiness, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) keep available the services of its officers and key employees as a group and maintain satisfactory relationships with its licensors, suppliers, distributors, customers and others having business relationships with it consistent with prudent business practices, (iii) update representatives of Buyer from time to time regarding the general status of its ongoing operations and the Business, (iv) notify Buyer of any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction emergency or one million dollars ($1,000,000) other material change in the aggregate during normal course of the Pre-Closing Period, except purchases Business and of supplies, equipment and inventory in any complaints outside of the ordinary course of business consistent with past practice;or investigations threatened or commenced against it (or communications indicating that the same may be contemplated by any Person); (v) not intentionally take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at the Closing, except where such failure to be true would not reasonably be expected to have a Material Adverse Effect; and (vi) promptly notify Buyer in writing if Sellers shall discover that any representation or warranty made by it in this Agreement was when made, or has subsequently become, untrue, except where such failure to be true would not reasonably be expected to have a Material Adverse Effect.
(d) (i) incur Sellers shall file any indebtedness tax returns, elections or information statements with respect to any liabilities for borrowed money or guarantee any such indebtedness Taxes of another individual or entity, issue or sell any debt securities or warrants Sellers or other rights matters relating to acquire Taxes of Sellers which affect the Assets and which pursuant to applicable law must be filed prior to the Closing Date. If Sellers amend any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) previously filed tax return in any individual expenditure manner that would adversely affect or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind create any material election relating to liability of Buyer for any Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or Sellers shall indemnify Buyer pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any the provisions of the actions set forth in the foregoing subsections (a) through (h) Article XI of this Section 4.7Agreement.
Appears in 1 contract
Conduct of the Business. Except (a) From the Effective Date until the earlier of the Closing or the termination of this Agreement pursuant to Section 7.1 (the “Interim Period”), except as (i) otherwise (v) required expressly contemplated or expressly permitted by lawthis Agreement, (wii) disclosed in the Disclosure Statementset forth on Schedule 5.1(a), (x) required by this Agreement or the Chapter 11 Plan or (yiii) consented to in writing by Requisite Investors the Investor (such consent not to be unreasonably withheld, delayed or conditioned), during (iv) expressly required by any Material Contract, Interim Period Contract or by applicable Law, or (v) in connection with any Extraordinary Event Response, the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), Parent shall cause the Company and each of the Company’s Subsidiaries to use commercially reasonable efforts to conduct its respective business in the Ordinary Course of Business, and the Parent shall cause the Company and each of the Company’s Subsidiaries shall to use their respective commercially reasonable efforts to (aA) conduct their businesses in the ordinary course preserve in all material respects as conducted at the date goodwill, reputation and present relationships with suppliers, customers, Governmental Authorities and others having significant business relationships with the Company or any of this Agreementits Subsidiaries, (B) maintain and renew in the Ordinary Course of Business their respective Insurance Policies (or obtain replacement or substitute insurance policies providing substantially similar coverage) and material Permits, (C) conduct and make all Affiliate Transactions in compliance in all material respects with the transaction guidelines and cost allocation methodologies set forth the applicable Affiliate Contracts, and (D) make aggregate capital expenditures of at least $2.2 billion by December 31, 2023, which such capital expenditures shall be paid for by the Company in the Ordinary Course of Business.
(b) to During the extent consistent therewithInterim Period, use commercially reasonable efforts to except as (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required contemplated or expressly permitted by this Agreement, (2ii) as required by lawset forth on Schedule 5.1(b), (3iii) for actions approved consented to in writing by the Requisite Investors in writing Investor (which approval shall such consent not to be unreasonably withheld, conditioned delayed or delayedconditioned), or (4iv) as set forth in Schedule 4.7, during the Pre-Closing Periodrequired by applicable Law, the Company shall not, and Parent shall cause its the Company and each of the Company’s Subsidiaries not to:
(a) (i) declaretake any action that would require consent from the Investor Member or the Investor Director (in each case, set aside as such terms are defined in the Operating Agreement) under the Operating Agreement if the Operating Agreement were in effect as of the Effective Date;
(ii) make, change or revoke any material Tax election or adopt or change any material method of Tax accounting or Tax accounting period; provided, however, that the foregoing limitations shall not apply with respect to any action that would not reasonably be expected to have a materially adverse impact on Investor as compared to other members of the Company;
(iii) declare or pay any dividends on, dividend or make distribution to the holders of any other distributions Equity Interests in respect of, any of its capital stock such entity (other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned a Subsidiary not in excess of one hundred thousand dollars the Company);
($100,000iv) in the aggregate during the Pre-Closing Period or (ii) purchaseredeem, redeem purchase or otherwise acquire, except in connection with the Chapter 11 Plan, acquire any shares equity interest of capital stock of the Company any Person or any other securities thereof or obligations convertible into or exchangeable for any equity interest of any Person, or any rightsoptions, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants conversion or other rights to acquire any debt equity interest in any Person or any such securities or obligations, or any other securities thereof, other than with respect to any purchases pursuant to the Company’s or any of its Subsidiaries’ build transfer agreements or Tax Equity Agreements in effect as of the Company, guarantee any debt securities of another individual date hereof or entity, executed during the Interim Period in accordance with this Section 5.1;
(v) enter into any "keep well" new line of business;
(vi) amend or modify its Organizational Documents in a manner that would reasonably be expected to be materially adverse to Investor, the Company or any of its Subsidiaries;
(vii) take any action that would result in Leakage following the Leakage Reference Date;
(viii) other agreement than as set forth in Schedule 5.1(b)(viii), incur any Indebtedness having an outstanding principal amount in excess of $100,000,000, other than (A) intercompany Indebtedness solely among the Company and its Subsidiaries, (B) intercompany guarantees of Indebtedness of the Company or any of its Subsidiaries or (C) purchases of equipment or materials made under conditional sales Contracts entered into in the Ordinary Course of Business; provided that no Indebtedness may be incurred without the Investor’s prior written consent if, after giving pro forma effect to maintain such incurrence and the application of the proceeds therefrom, the Company’s and its Subsidiaries’ debt-to-capital ratio (calculated in accordance with the Indiana Utility Regulatory Commission’s methodology) would be equal to or exceed the then-current target debt-to-capital ratio approved by the Indiana Utility Regulatory Commission by more than 200 basis points, which such calculation shall include any financial statement condition Indebtedness set forth on Schedule 5.1(b)(viii); or
(ix) agree or commit to do any of another Person the foregoing.
(c) Notwithstanding the foregoing, the Parent may cause or enter into permit the Company during the Interim Period to take, and cause or permit the Company’s Subsidiaries to take, reasonable actions in connection with (i) any arrangement having Emergency Situations, and (ii) any Extraordinary Event Response; provided, that the economic effect Parent shall, upon the occurrence of any of the foregoingcircumstances described above, except for (Aas promptly as reasonably practicable, inform the Investor in writing of such occurrence. No such actions under this Section 5.1(c) borrowings and increases taken in letters of credit permitted under compliance with the DIP Credit foregoing shall be deemed to violate or breach this Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make in any loans, advances or capital contributions toway, or investments in, any other individual or entity, except serve as a basis for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating Investor to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or this Agreement pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options Article VII or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take assert that any of the actions conditions to the Closing set forth in Article VI have not been satisfied.
(d) To the foregoing subsections extent the Parent requests consent from the Investor pursuant to Section 5.1(a) or Section 5.1(b) and the Investor has not responded within ten (a10) through (h) Business Days of this Section 4.7the Investor receiving written notice of such request, the Investor shall be deemed to have consented for the relevant matter.
Appears in 1 contract
Conduct of the Business. Except (a) During the period from the date of this Agreement through the earlier of the termination of this Agreement in accordance with its terms, and the Closing Date, except as (a) otherwise expressly contemplated by this Agreement, (b) otherwise consented to by Purchaser, in writing or (c) set forth on Schedule 5.3, Seller shall, and the Stockholder shall cause Seller to: (i) conduct its business and operations only in the ordinary course of business consistent with past practice, (ii) use commercially reasonable efforts to maintain its assets and properties and to preserve its current relationships with customers, employees, suppliers and others having business dealings with it, and (iii) use commercially reasonable efforts to preserve the goodwill and ongoing operations of the Business.
(b) Without limiting the generality of the foregoing, except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required expressly contemplated by this Agreement or the Chapter 11 Plan or (y) as otherwise consented to by Purchaser, in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned)writing, during the period from the date of this Agreement to through the earlier of the Effective Date termination of this Agreement and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Date, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company Seller shall not, and the Stockholder shall cause its Subsidiaries Seller not to:
(a) (i) declare, accrue, set aside or pay any dividends on, cash or non-cash dividend or make any other distributions cash or non-cash distribution in respect of, of any of its capital stock other than dividends Equity Interests, and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary shall not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchaserepurchase, redeem or otherwise acquire, reacquire any such Equity Interests except in connection with the Chapter 11 Planordinary course of business or to make cash distributions on account of income tax liability;
(ii) sell, issue, grant, authorize the issuance of, split, combine, redeem or reclassify, or purchase or otherwise acquire any shares (x) Equity Interests of capital stock of the Company Seller, (y) option or any other securities thereof or any rights, warrants or options right to acquire any such shares Equity Interests of Seller, or other securities(z) instrument convertible into or exchangeable for any Equity Interests of Seller;
(biii) issue, deliver, grant, sell, pledge, dispose of modify or otherwise encumber amend any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuethe organizational documents of Seller;
(civ) acquire amend, renew, terminate or agree waive any Material Contract or any material provision thereof, which amendment, renewal, termination or waiver would result in a reduction in anticipated revenue from such Material Contract in excess of $40,000;
(v) enter into any new contract that would have been a Material Contract if it had existed on the date hereof;
(vi) enter into any contract that purports to limit, curtail or restrict the kinds of businesses in which it or its existing or future Affiliates (other than HTL) may conduct their respective businesses, or the Persons with whom it or its existing or future Affiliates can compete or to whom it or its existing or future Affiliates can sell products or deliver services or the Person or class of Persons it may solicit for employment, or the acquisition of any business;
(vii) acquire (i) by merging or consolidating with, or by purchasing Equity Interests in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other mannermeans, any business or any corporation, partnership, association, joint venture, limited liability company or other entity Person or division thereof or (iiy) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction that are material, individually or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Periodaggregate, to Seller, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(dviii) (i) incur any indebtedness for borrowed money adopt a plan or guarantee any such indebtedness agreement of another individual complete or entitypartial liquidation, issue or sell any debt securities or warrants dissolution, merger, consolidation, restructuring, recapitalization or other rights to acquire any debt securities material reorganization of the CompanySeller;
(ix) divest, guarantee any debt securities of another individual sell, transfer, lease, license, pledge or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions tootherwise dispose of, or investments inpermit a Lien (other than Permitted Liens) on any asset of Seller, any other individual than the sales of products or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances services in the ordinary course of business consistent with past practice;
(ex) disclose any trade secret or Confidential Information of Seller to any Person other than to Business Employees (but only current Business Employees) that are subject to confidentiality or non-disclosure covenants protecting against further disclosure;
(xi) change its fiscal year or its accounting policies or procedures except to the extent required to conform with GAAP;
(xii) settle or compromise any pending or threatened litigation in the ordinary course of business consistent with past practice;
(xiii) make any capital expenditure with respect to Seller in excess of twenty-five thousand dollars ($25,000) in the aggregate except with respect to items which were already ordered or in the capital spending budget;
(xiv) waive any right of Seller under the confidentiality provisions of any Contract entered into with respect to the Business;
(xv) increase or make any change in the rate of annual or other compensation, commission opportunities, bonus opportunities, or other direct or indirect remuneration payable, or agree to pay, conditionally or otherwise, any bonus, incentive, retention, change in control payment or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any Business Employee;
(xvi) loan or advance any money or any other property to any Business Employee;
(xvii) abandon, disclaim, dedicate to the public, sell, assign or grant any security interest in, to or under any Intellectual Property, including failing to perform or cause to be performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in the Intellectual Property;
(xviii) grant to any Person any license with respect to any Intellectual Property, except non-exclusive licenses granted in connection with the repair sale or replacement license of asset of the Company or its Subsidiaries Business products in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement covenant not to sxx with respect to any existing, Collective Bargaining AgreementIntellectual Property;
(1xix) enter into fail to invoice any newcustomer or fail to pursue collection of any accounts receivable from any customer, or amend accelerate the collection of, or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code discount any accounts receivable from any customer except in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardspractice; or
(ixx) agree authorize, agree, resolve or otherwise commit consent to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 1 contract
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to through the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Date, the Shareholders shall and shall cause the Company and its Subsidiaries shall use their respective commercially reasonable efforts to to: (ai) conduct their businesses the Business and own, operate and use the Company's assets in the ordinary course in all material respects as conducted at consistent with past practice; (ii) use their best efforts to preserve the date present business organizations and relationships of this Agreementthe Company (including, without limitation, with customers, clients, vendors, suppliers, employees and (bothers) with respect to the extent consistent Business and the Company's assets and all of the goodwill associated therewith, ; (iii) use commercially reasonable their best efforts to (i) keep available the services of the present employees of the Company who are actively involved in the Business; (iv) use their current executive officersbest efforts to preserve the material rights and franchises of the Company which are part of the Company's assets; (v) not take any action that could reasonably be expected to or would have an adverse effect on the Business or any of the Company's assets or would materially impair, and hinder or adversely affect the ability of the Company or the Shareholders to consummate the transactions contemplated hereby, the Rosen Employment Agreement or the Non-Competition Agreement; (iivi) preserve substantially intact delxxxx to the commercial relationships with customers, suppliers, distributors and others that are material Purchaser a copy of each written notice sent or received under the any Personal Property Lease; (vii) deliver to the Purchaser a copy of each written notice or communication from any Governmental Entity or Regulatory Authority relating to the Company or its Subsidiaries, consistent with past practice as conducted prior Business; (viii) perform all material obligations under the Personal Property Leases and Contracts; and (ix) deliver to the date of this Agreement. Purchaser all material notices and communications with respect to the Business from customers, clients, suppliers, vendors and third parties.
(b) Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by from the date of this AgreementAgreement through the Closing Date, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval Shareholders shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, and shall not permit the Company shall not, and shall cause its Subsidiaries not to:
(a) : (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, transfer, dispose of or otherwise encumber or suffer or permit to exist any Lien on any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or Company's assets; (ii) hire any assets in excess of five hundred thousand dollars ($500,000) in new employees or fire any individual transaction current employees without cause, or one million dollars ($1,000,000) in increase any compensation or benefit payable or provided to any employee who is employed by the aggregate during the Pre-Closing PeriodCompany, except purchases pursuant to a Legal Requirement or Contract and which increase, if any, shall not be greater than in accordance with the Company's past practices; (iii) enter into, amend or terminate any Contract without the prior written consent of suppliesthe Purchaser or take or fail to take any action within the reasonable control of the Shareholder or Company that would constitute a breach of or default under (without regard to any notice or passage of time or both) any Contract; (iv) enter into, equipment and inventory amend, modify or adopt any Benefit Plan, except as may otherwise be required pursuant to any applicable Legal Requirement; (v) waive any claims or rights of value with respect to any of the Company's assets or the Business, other than in the ordinary course of business consistent with past practice;
practices; (dvi) change any accounting principle, or method, practice or procedure, or make, amend or revoke any Tax election; (ivii) amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Personal Property Lease or Contract or Authorization without the prior written consent from the Purchaser, which consent will not be unreasonably withheld or delayed; (viii) exercise any right or option under any Personal Property Lease or any Contract or extend or renew any Personal Property Lease or any Contract; (ix) make any distribution or dividend of any kind including of any of the Company's assets to the Shareholders or any other Person,; (x) incur any indebtedness for borrowed money other than borrowings for working capital purposes under existing credit facilities in the ordinary course of business and consistent with past practices; (xi) purchase any property or guarantee assets from any such indebtedness of another individual Shareholder or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for Shareholders' Affiliates; (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (iixii) make any loansloan, advances or capital contributions to, or investments in, any other individual Person (other than customary loans or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances to employees in the ordinary course of business consistent accordance with past practice;
practices); (exiii) other than pay, discharge or satisfy before it is due any claim or liability, or fail to pay any such item in connection with the repair a timely manner; (xiv) accelerate or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) otherwise change in any individual expenditure material manner the Company's practice of collecting accounts receivable; or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1xv) enter into any newContract, agreement, commitment or arrangement to do, or amend take, or terminate agree (other than amendments required to maintain the tax qualified status of such plans under the Code orally or in the ordinary course of business consistent with past practiceswriting) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take or consent to, any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business. (a) Except as otherwise (v) required by lawexpressly provided in this Agreement, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to hereof until the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms Closing, Allianz Life shall:
(the “Pre-Closing Period”i) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (aA) conduct their businesses the Business only in the ordinary course in all material respects as conducted at the date of this Agreement, consistent with past practices and (bB) to the extent consistent therewith, use commercially reasonable efforts to (i1) preserve intact the value of the Business and the present business organization relating to the Business, (2) keep available the services of their current executive officersthe officers and key employees who are involved in the operations of the Business, and (3) preserve the goodwill of the agents, brokers, customers, suppliers and other persons having business dealings with the Allianz Entities in connection with the Business;
(ii) preserve substantially intact perform all of its material obligations under agreements, contracts and other instruments relating to or affecting the commercial relationships operations of the Business;
(iii) comply in all material respects with customers, suppliers, distributors and others that are material all Laws applicable to the Company or its Subsidiaries, consistent Business; and
(iv) confer on a regular basis with past practice representatives of Buyer (as conducted prior reasonably requested by Buyer) to report on operational matters and the date general status of this Agreement. ongoing operations of the Business.
(b) Without limiting the generality of the foregoingSection 5.01(a), except (1) as otherwise expressly permitted or required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors or consented to in writing (which approval shall not be unreasonably withheldby Buyer, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company Allianz Life shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make (A) modify, terminate or incur fail to use commercially reasonable efforts to maintain in effect or renew any capital expenditure involving the expenditure of no more than one hundred thousand dollars In-Force Assumed Treaty or Retrocessional Agreement, ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1B) enter into any newnew retrocessional agreement with respect to all or any portion of the In-Force Assumed Treaties or (C) enter into, modify, terminate or assign any other material agreement, arrangement or understanding with respect to the Business;
(ii) change any of its accounting principles, practices, methods or policies with respect to the Business, including, without limitation, its reserving methods, practices and policies, except as may be required as the result of a change in any applicable Law, GAAP or SAP;
(iii) make or propose to make any material change in the underwriting, pricing, claims, risk retention, actuarial, valuation, marketing, reinsurance, administration, or amend information technology and data privacy practices or terminate policies of the Acquired Business that Allianz Life knows, or reasonably should know, at the time it makes or proposes to make such change, would have a Material Adverse Effect;
(iv) intentionally take any action with the Knowledge that such action will, or as reasonably expected to, render any representation or warranty made by Allianz Life in this Agreement untrue at the Closing;
(v) pay, discharge, settle, satisfy or waive any claims, liabilities or obligations arising on or after the Effective Date and relating to the Business in excess of $250,000, other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices;
(vi) dispose of any existing, Company Plans, arrangements of the Purchased Assets;
(vii) permit or programs, severance agreement, deferred compensation arrangement or employment agreement with allow any officers, directors or employees, Purchased Assets to become subject to any Liens (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesPermitted Liens), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(iviii) authorize any of, or commit or agree or otherwise commit to take any of the actions set forth in of, the foregoing subsections (a) through (h) of this Section 4.7actions.
Appears in 1 contract
Samples: Master Agreement (Reinsurance Group of America Inc)
Conduct of the Business. Except Unless Buyer shall otherwise agree in writing or except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required contemplated by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheldAgreement, delayed or conditioned), during the period from the date of this Agreement to the earlier Sellers will cause each of the Effective Date Companies and the date on which this Agreement is terminated Subsidiaries to observe the following provisions until and including the Closing Date:
(a) each of the Companies and the Subsidiaries will conduct its business only in, and neither of the Companies nor any Subsidiary will take any action except in, the Ordinary Course of Business and in accordance with applicable Law and each will continue to conduct its terms respective business in accordance with past practices, assuming such practices lead to retaining value in each of the Companies and Subsidiaries and not to maximizing distributions to the shareholders of each of the Companies;
(b) each of the “Pre-Closing Period”Companies and the Subsidiaries will (i) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and use its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreementpreserve its business organization and goodwill, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii), subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations as reasonably requested by Buyer and (iiiii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by lawLaw or Contract, (3) for actions approved not take any action that would render, or that reasonably may be expected to render, any representation or warranty made by the Requisite Investors Companies in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during this Agreement untrue at the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueClosing;
(c) acquire neither the Companies nor any Subsidiary will change any of their methods of accounting in effect on September 30, 2007, other than changes required by GAAP or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceFCC;
(d) neither CS&L nor BCC shall make any distributions of cash or assets to their respective shareholders except (i) incur any indebtedness for borrowed money or guarantee any as necessary to provide such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights shareholders cash to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or pay tax obligations; (ii) make any loansthe distribution of the Subsidiary Equity Interest contemplated in Section 7.1(d); (iii) proceeds resulting from the sale of Northern PCS Services, advances LLC to the extent the Subsidiary Equity Interests have not yet been distributed; (iv) the proceeds resulting from the disposition of Wireless Communication Ventures; (v) the split dollar life insurance policies numbers 000-00-000, 000-00-000 and 000-00-000 held for estate planning purposes and related receivables; or capital contributions to, (vi) marketable securities or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practicecash as specifically contemplated by this Agreement as necessary to keep Closing Date Working Capital below $20,000,000;
(e) other than in connection with the repair or replacement of asset neither of the Company Companies nor any Subsidiary will cancel or terminate its Subsidiaries current insurance policies or allow any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred full force and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodeffect;
(f) makeneither of the Companies nor any Subsidiary will (i) dispose of any assets except (A) in the Ordinary Course of Business, change provided that the monetary value of any such asset or rescind assets in the aggregate shall not exceed $50,000; (B) disposition of cash to repay bank debt or capital lease obligations as contemplated under Section 7.1(b) or (C) as contemplated by this Agreement or (ii) otherwise transfer any material election relating to Taxesasset, settle including cash, among the Companies, Subsidiaries or compromise any material Tax liability for entities in which either of the Companies or a Subsidiary holds an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax ReturnEquity Investment;
(g) adopt, neither of the Companies nor any Subsidiary will incur any additional Indebtedness or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreementrefinance existing Indebtedness;
(1h) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesexcept as set forth on Schedule 5.1(h), (3) grant neither of the Companies nor any stock options or stock awards or (4) Subsidiary will make any annual capital contributions, loans, further equity investments or long-term incentive awards; orguarantee any Indebtedness or otherwise incur any liabilities or Indebtedness, contingent or otherwise, on behalf of any entity in which one of the Companies or a Subsidiary has an Equity Investment;
(i) agree neither of the Companies nor any Subsidiary will make any investments, either in the form of equity or debt, in any proposed new ventures; and
(j) neither of the Companies nor any Subsidiary shall transfer on their respective stock ledgers or books or issue stock certificates upon transfer of Shares or otherwise commit to take issue any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7additional equity.
Appears in 1 contract
Samples: Stock Purchase Agreement (Iowa Telecommunications Services Inc)
Conduct of the Business. Except as otherwise (va) required by lawFrom the date hereof until the Closing Date, the Company shall use its commercially reasonable efforts (wi) disclosed to conduct its business and the businesses of its Subsidiaries in the Disclosure StatementOrdinary Course of Business and (ii) to preserve the current relationships of the Company and its Subsidiaries with their customers, suppliers, distributors, licensors, licensees, partners and other Persons with which the Company or any of its Subsidiaries has significant business relations as is reasonably necessary in order to preserve substantially intact its business and goodwill, except (x) required if the Purchaser shall have consented in writing or (y) as otherwise expressly contemplated or expressly permitted by this Agreement; provided that, the foregoing notwithstanding, (A) the Company and its Subsidiaries may use all available cash to repay any Indebtedness or to make cash distributions prior to the open of business on the Closing Date, (B) no action by the Company or its Subsidiaries with respect to matters specifically addressed by any other provision of this Section 7.01 shall be deemed a breach of this Section 7.01(a), unless such action would constitute a breach of one or more of such other provisions and (C) the Company and its Subsidiaries’ failure to take any action prohibited by Sections 7.01(b) or 7.01(c) shall not be a breach of this Section 7.01(a).
(b) From the date hereof until the Closing Date, except (A) as set forth on the Conduct of Business Schedule attached hereto, (B) as otherwise expressly contemplated or expressly permitted by this Agreement or the Chapter 11 Plan or (yC) as consented to in writing by Requisite Investors the Purchaser (such consent not to be unreasonably withheldwhich consent, delayed or conditionedin the case of Sections 7.01(b)(vi), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement7.01(b)(x), the Company 7.01(b)(xi) and its Subsidiaries shall use their respective commercially reasonable efforts to (a7.01(b)(xvi) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall will not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to, do or cause to be done any of the following:
(ai) issue, pledge, cancel, sell or deliver any units or shares of its or its Subsidiaries’ equity securities or issue, grant or sell 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;
(ii) (iA) declare, set aside or pay any dividend or distribution (other than cash dividends onor cash distributions paid prior to the open of business on the Closing Date) in respect of any shares of, or other equity interests in, the Company or any Subsidiary of the Company, or (B) effect any recapitalization, reclassification, equity dividend, equity split or like change in the capitalization of the Company or any Subsidiary of the Company;
(iii) other than to the extent required to comply with its obligations hereunder or required by Law, amend its or its Subsidiaries’ certificate or articles of formation or incorporation or similar organizational documents;
(iv) make any redemption or purchase of any units or shares of its or its Subsidiaries’ equity securities (other distributions than redemptions or purchases paid in respect cash prior to the open of business on the Closing Date);
(v) create any Lien on any assets or properties (whether tangible or intangible) of the Company or its Subsidiaries, other than Permitted Liens;
(vi) incur or assume any Indebtedness other than in the Ordinary Course of Business and other than pursuant to written agreements set forth on the Contracts Schedule as in effect as of the date hereof;
(vii) sell, assign, transfer, lease or otherwise dispose of, or agree to sell, assign, transfer, lease or otherwise dispose of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars assets, except ($100,000A) in the aggregate during Ordinary Course of Business, (B) pursuant to any agreement set forth on the Pre-Closing Period Contracts Schedule as in effect on the date hereof or (iiC) purchase, redeem or otherwise acquire, except in connection with pursuant to transactions among the Chapter 11 Plan, any shares of capital stock Company and wholly owned Subsidiaries of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesCompany;
(bviii) issueacquire (by merger, deliverconsolidation, grant, sell, pledge, dispose acquisition of or otherwise encumber any of its capital stock or any securities convertible into, assets or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(cotherwise) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company partnership or other entity business organization or division thereof or (ii) any assets business, in each case to the extent such transactions involve consideration in excess of five hundred thousand dollars ($500,000) in any individual transaction 250,000 individually or one million dollars ($1,000,000) 500,000 in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceaggregate;
(dix) (i) incur make any indebtedness for borrowed money investment in excess of $250,000 in, or guarantee any such indebtedness advances, loans, extensions of another individual credit or entitycapital contributions in excess of $250,000 to, issue or sell any debt securities or warrants or other rights to acquire any debt securities Person other than a wholly owned Subsidiary of the Company, guarantee except (A) extensions of trade credit in the Ordinary Course of Business or (B) pursuant to any debt securities agreement set forth on the Contracts Schedule as in effect on the date hereof;
(x) make any capital expenditures in excess of another individual $250,000 individually or entity$500,000 in the aggregate or commitments therefor, except for such capital expenditures or commitments therefor that are reflected in the Company’s or its Subsidiaries’ current budget as provided to the Purchaser prior to the date hereof;
(xi) enter into any "keep well" agreement that would constitute a Material Contract, or other agreement to maintain amend, modify or terminate any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoingMaterial Contract, except for the entrance into such contracts (Aother than any contract described in clause (i), (ii), (iii), (ix), (x), (xi), (xii) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (iixviii) of the definition of Material Contract) in the Ordinary Course of Business;
(xii) make any loans, advances or capital contributions loan to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any newother material transaction with, any of its directors, officers or renewemployees except pursuant to any agreement set forth on the Contracts Schedule or the Affiliated Transactions Schedule as in effect on the date hereof;
(xiii) except as required under applicable Law or under any existing Plan set forth on the Employee Benefits Schedule, (A) adopt, enter into, terminate or materially amend any Plan or supplement other agreement, plan or policy involving the Company or any existingof its Subsidiaries and one or more of their respective Participants, Collective Bargaining Agreement(B) accelerate or increase in any manner the compensation, bonus, severance or fringe or other benefits of, or pay or grant any bonus or award to, any Participant, (C) pay any benefit or amount not required under any Plan set forth on the Employee Benefits Schedule, other than the payment of base salary and wages or (D) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan;
(1xiv) hire any employee with an expected annual compensation in excess of $150,000 (other than pursuant to any “at will” contract that may be terminated by the Company or a Subsidiary of the Company, without any payment or penalty, upon thirty (30) days or less advance notice or upon the minimum advance notice required by applicable Law);
(xv) change any method of accounting or accounting practice used by the Company or its Subsidiaries, other than such changes required by GAAP or in order to become compliant with GAAP;
(xvi) settle any material claim, action or proceeding or waive or release any material rights or material claims;
(xvii) commence any material litigation, action or proceeding (other than to enforce the terms of this Agreement);
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, plan of arrangement or amalgamation; or
(xix) enter into any newagreement to take, or amend or terminate (other than amendments required cause to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existingbe taken, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.77.01(b).
(c) Without limiting the generality of Section 7.01(a), from the date hereof until the Closing Date, (i) the Company shall promptly notify the Purchaser of any suit, claim, action, assessment, investigation, proceeding or audit pending against or with respect to the Company or any of its Subsidiaries in respect of any Tax and will not settle or compromise any such suit, claim, action, assessment, investigation, proceeding or audit without the Purchaser’s prior written consent; (ii) the Company shall not make any change in any method of Tax accounting or Tax accounting practice or policy, other than such changes as are required by Tax law, as applicable; and (iii) neither the Company nor any Subsidiary shall make any Tax election.
Appears in 1 contract
Samples: Securities Purchase Agreement (DreamWorks Animation SKG, Inc.)
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from From the date of this Agreement to hereof through the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Date, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses the Business only in the ordinary course in all material respects as conducted at (including the date payment of this Agreement, accounts payable and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services collection of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiariesaccounts receivable), consistent with past practice as conducted practices, and shall not enter into any material transactions without the prior written consent of Purchaser, and shall use its best efforts to the date of this Agreementpreserve intact its business relationships with employees, clients, suppliers and other third parties. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreementfrom the date hereof until and including the Closing Date, (2) as required by law, (3) for actions approved by the Requisite Investors in writing without Purchaser’s prior written consent (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declareamend, set aside modify or pay any dividends on, supplement its Operating Agreement or other organizational or governing documents;
(ii) make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not expenditures in excess of one hundred thousand dollars $1,000,000 ($100,000) individually or in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesaggregate);
(biii) issue, deliver, grant, sell, pledgelease, license or otherwise dispose of or otherwise encumber any of its capital stock the Company’s assets except (1) pursuant to existing contracts or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
commitments disclosed herein and (c2) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion sales of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(div) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness accept returns of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, products sold from inventory except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business course, consistent with past practice;
(ev) pay, declare or promise to pay any dividends or other distributions with respect to its capital stock, or pay, declare or promise to pay any other payments to any stockholder of the Company;
(vi) suffer or incur any lien on the Company’s assets;
(vii) suffer any damage, destruction or loss of property related to any of the Company’s assets, whether or not covered by insurance;
(viii) merge or consolidate with or acquire any other Person or be acquired by any other Person;
(ix) suffer any insurance policy protecting any of the Company’s assets to lapse;
(x) make any change in its accounting principles or methods or write down the value of any inventory or assets;
(xi) change the place of business or jurisdiction of organization of the Company;
(xii) extend any loans other than in connection with the repair travel or replacement of asset of the Company or its Subsidiaries other expense advances to employees in the ordinary course of business consistent with past practice, make not to exceed $1,000 individually or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) 10,000 in the aggregate during the Pre-Closing Periodaggregate;
(fxiii) makeissue, change redeem or rescind repurchase any material election relating to Taxescapital stock, settle membership interests or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statementsother securities, or amend issue any material Tax Returnsecurities exchangeable for or convertible into any shares of its capital stock;
(gxiv) adopteffect or agree to any change in any practices or terms, including payment terms, with respect to customers or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreementsuppliers;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4xv) make or change any material tax election or change any annual or long-term incentive awardstax accounting periods; or
(xvi) agree to do any of the foregoing.
(b) The Company shall (i) take or agree or otherwise commit to take any action that might make any representation or warranty of the actions set forth Company inaccurate or misleading in any respect at, or as of any time prior to, the foregoing subsections Closing Date or (aii) through (h) of this Section 4.7omit 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 respect at any such time.
Appears in 1 contract
Samples: Purchase Agreement (iFresh Inc)
Conduct of the Business. Except (a) From the date hereof until the Closing Date, the Company shall (i) conduct its business and the businesses of its Subsidiaries in the ordinary course of business, except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required contemplated by this Agreement Agreement, as set forth on the Conduct of Business Schedule or with respect to actions required in connection with the Chapter 11 Plan LiquidPoint Transaction, or (y) as consented to in writing by Requisite Investors the Purchaser (such which consent will not to be unreasonably withheld, delayed withheld or conditioneddelayed), during (ii) use reasonable best efforts to preserve the period from the date of this Agreement to the earlier of the Effective Date Company’s and the date on which this Agreement is terminated in accordance its Subsidiaries’ existing business relationships with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)employees, vendors, suppliers, customers, Governmental Entities and others having business dealings with the Company and its Subsidiaries shall Subsidiaries, (iii) use their respective commercially reasonable best efforts to continue to maintain, in all material respects, its assets, properties, rights and operations in accordance with present practice, (aiv) conduct their businesses keep its books of account, files and records in the ordinary course and in all material respects as conducted at the date of this Agreement, accordance with present practice and (bv) to the extent consistent therewith, use commercially reasonable best efforts to (i) keep available the services of their current executive officersits present officers and key employees; provided that, notwithstanding the foregoing, (i) no action by the Company or its Subsidiaries with respect to matters specifically addressed by any other provision of this Section 8.01 shall be deemed a breach of this Section 8.01(a), unless such action would constitute a breach of one or more of such other provisions, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or and its Subsidiaries, consistent with past practice as conducted prior ’ failure to take any action prohibited by Section 8.01(b) shall not be a breach of this Section 8.01(a).
(b) From the date of this Agreement. Without limiting hereof until the generality of the foregoingClosing Date, except (1) as otherwise expressly specifically required or permitted by this Agreement, consented to in writing by the Purchaser (2which consent will not be unreasonably withheld or delayed) or as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned Law or delayed), or (4) as set forth in Schedule 4.7, during on the Pre-Closing PeriodConduct of Business Schedule, the Company shall not, and shall cause not permit any of its Subsidiaries not to, directly or indirectly:
(ai) borrow any amount, other than (iA) from any Subsidiary of the Company, (B) Indebtedness incurred in the ordinary course of business under any revolving or other credit facility (including, for the avoidance of doubt, for clearing, settlement or margin purposes) entered into prior to the date of this Agreement or (C) in the case of the Company Broker‑Dealers, in the ordinary course of business consistent with past practice after the date of this Agreement in order to support the operation of the business of the Company Broker‑Dealers;
(ii) declare, set aside aside, pay or pay effect any dividends ondistribution of assets (including, distributions of cash, property and other similar in‑kind distributions) with respect to its equity securities or make any other distributions in respect of, repurchase any of its capital stock equity securities, other than cash dividends and distributions in respect of the capital stock of made by any wholly-owned direct or indirect wholly‑owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess to one of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesits wholly‑owned Subsidiaries;
(biii) enter into a new agreement that would have been required to be listed on the Contracts Schedule if it had been entered into as of the date of this Agreement, or amend in a material manner or terminate any agreement listed on the Contracts Schedule;
(iv) issue, deliver, grant, sell, pledge, dispose of sell or otherwise encumber deliver any units or shares of its capital stock or its Subsidiaries’ equity securities or issue or sell any securities convertible into, or any rightsoptions with respect to, or warrants to purchase or options rights to acquiresubscribe for, any such capital stock at less than fair market valueunits or shares of its or its Subsidiaries’ equity securities or alter in any way any of its outstanding units or securities or make any change in outstanding securities or its capitalization;
(cv) acquire or agree to acquire (i) by merging or consolidating withincrease the compensation, or by purchasing a substantial portion of the stockincentive arrangements, or other ownership interests benefits to any officer or employee of the Company or its Subsidiaries or become a party to, establish, amend, commence participation in, terminate or substantial commit itself to the adoption of any Plan or any arrangement that would be a Plan if in effect on the date hereof;
(vi) promote or change the title of any Company Service Provider (retroactively or otherwise) or hire or make an offer to hire any new Company Service Provider;
(vii) terminate the employment or service of any Company Service Provider other than (A) as required under this Agreement or (B) for insubordination, misconduct or other acts or omissions constituting “cause”;
(viii) effect any recapitalization, reclassification, corporate reorganization, equity dividend, split or like change in its capitalization or equity interests;
(ix) amend its or its Subsidiaries’ certificate or articles of formation or incorporation (or similar organizational documents);
(x) make any redemption or purchase of any units or shares of its or its Subsidiaries’ equity securities;
(xi) sell, assign, transfer, dispose of, lease, license, mortgage, pledge or encumber any material portion of assets ofits tangible assets, or by any other manner, any except in the ordinary course of business or pursuant to any corporationagreement set forth on the Contracts Schedule;
(xii) sell, partnershipassign, associationconvey, joint venture, limited liability company license or other entity or division thereof or (ii) otherwise transfer any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing PeriodOwned Intellectual Property, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(dxiii) (i) incur acquire by merging or consolidating with, or agreeing to merge or consolidate with, or purchase substantially all the stock or assets of, or otherwise acquire any indebtedness for borrowed money business or guarantee any such indebtedness of another individual or entitycorporation, issue or sell any debt securities or warrants partnership, association or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual business organization or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for division thereof;
(A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (iixiv) make any loans, advances or capital contributions toinvestment in, or investments inany loan to, any other individual or entityPerson, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practicepractice or pursuant to any agreement set forth on the Contracts Schedule;
(exv) (A) make or commit to make any capital expenditure, other than ordinary repairs, of any of its tangible assets except for capital expenditures or commitments in the ordinary course of business consistent with past practice or (B) fail to make any planned capital expenditure or repair of any of its tangible assets that is necessary or advisable to maintain such assets in good working order and repair, or, unless contemplated in the Company’s current annual budget set forth on Schedule 8.01(b)(xv), commit to making any capital expenditure in any post‑Closing period in an amount in excess of $500,000;
(xvi) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make modify, amend, cancel or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure terminate or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) makewaive, change release or rescind assign any material election relating rights or claims with respect to Taxes, settle or compromise (A) any material Tax liability for an amount greater than the amount reserved for such liability agreement set forth on the most recent Financial Statements, or amend any material Tax Return;
(g) adoptContracts Schedule, or enter into any newcontract which, if entered into prior to the date hereof, would be required to be set forth on the Contracts Schedule or renew, (B) any existing insurance policies (or materially amend or supplement any existing, Collective Bargaining Agreementcomparable insurance);
(1xvii) enter into any new, or amend or terminate (other than amendments required except with respect to maintain Subsidiaries of the tax qualified status of such plans under the Code Company in the ordinary course of business consistent with past practicespractice, assume, guarantee, endorse or otherwise agree to become liable or responsible (whether directly, contingently or otherwise) for the obligations of any existingother Person;
(xviii) make any loan to, Company Plansor enter into any other transaction with, arrangements or programsany of its directors, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employeesemployees except for payments of cash bonuses pursuant to any agreement set forth on the Contracts Schedule or the Affiliated Transactions Schedule;
(xix) except as may be required as a result of a change in Law or in GAAP, change any method of accounting or accounting principle, method, estimate or practice;
(2xx) grant settle or compromise any increases litigation or other legal proceeding against the Company or any of its Subsidiaries other than settlements or compromises where the amounts paid by the Company or any of its Subsidiaries in employee compensationthe aggregate pursuant to such settlements or compromises do not exceed $100,000 individually or $500,000 in the aggregate and are paid in cash before Closing such that the impact thereof is fully reflected in the calculation of the Closing Consideration; provided, that the foregoing shall not permit the Company or any of its Subsidiaries to settle any litigation or other legal proceeding that would (A) impose restrictions or changes on the business or operations of the Company or any of its Affiliates or (B) reasonably be expected to impose restrictions or changes on the business or operations of the Purchaser, each of which shall be prohibited under this Section 8.01(b);
(xxi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(xxii) permit its Regulatory Working Capital to fall below levels sufficient to (A) comply with all applicable Laws or (B) conduct the volume of business it currently conducts;
(xxiii) take any action or commit to take any action that would require the filing of an application with FINRA under Rule 1017, other than in the ordinary course transaction contemplated by this Agreement;
(xxiv) make, change, revoke or pursuant enter into any material Tax election or agreement, change any method of accounting or change any accounting period, extend the statute of limitations for Tax items, amend any income or other material Tax Return, surrender any right to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant claim a Tax refund or settle or compromise any stock options or stock awards or (4) make any annual or long-term incentive awardsmaterial claim for Taxes; or
(ixxv) agree enter into any agreement or otherwise understanding or commit to take do or authorize any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 1 contract
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from From the date of the Agreement to and including the Closing Date, (1) except with respect to any obligations expressly set forth in this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreementapplicable Law, (2) as required by lawwith the prior written consent of the Buyer, (3) for actions approved by the Requisite Investors in writing (which approval consent shall not be unreasonably withheld, conditioned or delayed), or and (43) except as set forth in on Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to6.1 hereto:
(a) each of the Company and the Subsidiaries will conduct its business only in the Ordinary Course of Business;
(b) neither the Company nor any Subsidiary will amend or modify any Material Contract in any manner materially adverse to the Company or such Subsidiary;
(c) each of the Company and the Subsidiaries will (i) use commercially reasonable efforts to preserve its business organization and goodwill, keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii), subject to applicable Laws, confer with representatives of Buyer relating to the general status of ongoing operations as reasonably requested by Buyer and (iii) not take any action that would render any representation or warranty made by the Company in this Agreement untrue at the Closing as though then made, including any actions referred to in Section 4.10;
(d) neither the Company nor any Subsidiary will change in any material respect any of its methods of accounting in effect on March 31, 2006, other than changes required by GAAP (or, with reference to non-U.S. Subsidiaries, other applicable accounting standards);
(e) neither the Company nor any Subsidiary will cancel or terminate its current insurance policies or allow any of the coverage thereunder to lapse, unless replaced by a policy providing substantially similar coverage to the policy being replaced;
(f) neither the Company nor any Subsidiary will (i) amend or propose to amend its certificate of incorporation or by-laws, (ii) split, combine or reclassify its outstanding capital stock, (iii) declare, set aside or pay pay, any dividends ondividend or distribution payable in stock or property, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000iv) in the aggregate during the Pre-Closing Period or (ii) purchaserepurchase, redeem or otherwise acquireacquire any of its outstanding shares of capital stock;
(g) neither the Company nor any Subsidiary will issue, except in connection with the Chapter 11 Plansell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of its or its Subsidiaries' capital stock stock, or any debt or equity securities convertible into, exchangeable for or exercisable for such capital stock, or enter into any Contract with respect to any of the foregoing, except for issuances of Common Shares pursuant to the exercise of Stock Options or Warrants outstanding as of the date of this Agreement;
(h) neither the Company nor any Subsidiary will (i) incur or become contingently liable with respect to any Other Indebtedness other than the Other Indebtedness shown in the Disclosure Schedule or otherwise disclosed in the Financial Statements, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock, Stock Options or Warrants, (iii) make any acquisition of any assets or businesses or any other securities thereof capital expenditures other than expenditures for fixed or any rightscapital assets in the Ordinary Course of Business, warrants or options to acquire any such shares or other securities;
(biv) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any assets or businesses other than sales in the Ordinary Course of Business, (v) loan, advance funds or make any investment in or capital contribution to any other Person other than to any Subsidiary, or (vi) enter into any Contract with respect to any of the foregoing;
(i) neither the Company nor any Subsidiary will enter into any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less Subsidiaries (other than fair market valuethe Merger and the Transactions);
(cj) acquire neither the Company nor any Subsidiary will alter the corporate structure or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practiceCompany's Subsidiaries;
(ek) other than in connection with the repair or replacement of asset of neither the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur nor any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or Subsidiary will enter into any newsale, lease or renew, license or materially amend or supplement offer to extend any existing, Collective Bargaining Agreement;
Encumbrance (1except for Permitted Encumbrances) enter into in respect of any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensationits assets, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice Ordinary Course of Business;
(which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), l) neither the Company nor any Subsidiary will (3i) grant any severance, retention or termination pay to, or amend any existing severance, retention or termination arrangement with, any current or former director or officer of the Company or any of its Subsidiaries (other than pursuant to agreements currently in effect), or except in the Ordinary Course of Business, any employee of the Company or any of its Subsidiaries, (ii) except as required by Law or agreements or Plans or policies currently in effect, increase or accelerate the payment or vesting of, benefits payable under any existing severance, retention or termination pay policies or employment agreements, (iii) enter into or amend any employment, consulting, deferred compensation or other similar agreement with any director, officer, consultant or employee of the Company or any of its Subsidiaries, (iv) establish, adopt or amend (except as required by applicable Law) any collective bargaining agreement, bonus, profit-sharing, thrift, pension, retirement, post-retirement medical or life insurance, retention, deferred compensation, compensation, stock options option, restricted stock or stock awards other benefit plan or arrangement covering any present or former director, officer or employee, or any beneficiaries thereof, of the Company or any of its Subsidiaries or (4v) increase the compensation, bonus or other benefits payable to any officer or employee of the Company or any of its Subsidiaries, other than in the Ordinary Course of Business, or any director;
(m) neither the Company nor any Subsidiary will repay, redeem, repurchase or make any annual offer (including any change of control offer provided in the Indentures) of repayment, redemption or long-term incentive awards; orrepurchase of any Indenture Indebtedness, except as required by Section 6.3;
(in) agree neither the Company nor any Subsidiary will settle or otherwise commit enter into any settlement agreement with respect to take any outstanding Litigation, except that, notwithstanding the foregoing, the Company may settle or enter into any settlement agreement with respect to any outstanding Litigation where the amount of such settlement is less than $500,000; and
(o) neither the Company nor any Subsidiary will enter into or authorize an agreement with respect to any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7actions.
Appears in 1 contract
Conduct of the Business. Except (a) From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 9.01, except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required provided for by this Agreement (including the Disclosure Schedules) or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors Parent (such which consent will not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and will use its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available conduct its business and the services businesses of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practiceand (ii) preserve intact their current business organizations, make or incur any capital expenditure involving keep available the expenditure services of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred their current officers and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant and maintain their relations and goodwill with material suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having material business relationships with the Company and each of its Subsidiaries, respectively; provided that, this Section 6.01 notwithstanding, the Company and its Subsidiaries may use all available cash to repay any increases in employee compensation, other than in the ordinary course Indebtedness or pursuant to promotionspay any Transaction Expenses, in each case consistent with past practice prior to the Closing. For the avoidance of doubt, nothing in this Agreement shall limit the ability of the Company and the Company’s board of directors to accelerate the vesting of any Unvested Class B Common Share prior to the Closing Date.
(b) From the date hereof until the Closing Date, except as otherwise provided for by this Agreement or consented to in writing by Parent (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesconsent will not be unreasonably withheld, delayed or conditioned), (3) grant the Company will not, and will not permit any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to of its Subsidiaries to, take any action which, if taken after the date of the actions set forth in Latest Balance Sheet and prior to the foregoing subsections (a) through (h) date of this Section 4.7Agreement, would be required to be disclosed on Schedule 4.07.
Appears in 1 contract
Conduct of the Business. Except as otherwise Pending the Closing.
(va) required by lawPrior to the Closing, except (w) disclosed in the Disclosure Statementas set forth on Schedule 6.2(a), (x) as required by applicable Law, (y) as otherwise expressly contemplated by this Agreement or any of the Chapter 11 Plan Transaction Documents, or (yz) consented to in writing by Requisite Investors with the prior written consent of Buyer (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed), during Seller shall cause the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Company, the Company WS Holdings and its Subsidiaries to, and the Company shall:
(i) conduct the Business in the Ordinary Course of Business (for the avoidance of doubt, a slow down or halt in the pace of new franchise sales during the pendency of the Transaction shall be deemed to be operating in the Ordinary Course of Business); and
(ii) use their respective its commercially reasonable efforts to (aA) conduct their businesses in preserve the ordinary course in all material respects as conducted at present business operations, organization and goodwill of the date of this AgreementCompany, and (b) to the extent consistent therewith, use commercially reasonable efforts to (iB) keep available the services of their current executive its and its Affiliates’ officers, employees and representatives engaged in the Business, and (iiC) preserve substantially intact the commercial present relationships with customersthe customers of (including its franchisees), suppliersthe suppliers of and any other Persons that have material business relations with the Company.
(b) Other than (w) as set forth on Schedule 6.2(b), distributors and others that are material to the Company or its Subsidiaries(x) as required by applicable Law, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1y) as otherwise expressly required or permitted contemplated by this AgreementAgreement or any of the Transaction Documents, or (2z) as required by law, with the prior written consent of Buyer (3) for actions approved by the Requisite Investors in writing (which approval shall such consent not to be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7Seller shall cause the Company and WS Holdings and its Subsidiaries not to, during the Pre-Closing Period, and the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declaretransfer, set aside issue, sell, purchase, redeem, pledge or encumber, retire or grant any equity interests of the Company or grant any options, warrants, calls or other rights to purchase or otherwise acquire (including upon conversion, exchange or exercise of convertible, derivative or similar securities) equity interests of the Company;
(ii) reclassify, combine, split, subdivide or amend the terms of any of the Company’s capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock;
(iii) with respect to the Company, declare or pay any dividends on, or make any other distributions on or in respect of, of any of its capital stock equity interests or redeem, repurchase or acquire any of its equity interests;
(iv) amend the certificate of formation, limited liability company agreement or other organizational documents of the Company;
(v) other than dividends as required by applicable Law or by the terms of any such Seller Benefit Plan or similar Contract in effect on the date hereof and distributions in respect set forth on Schedule 4.13(a), (A) increase or accelerate the vesting or payment of the capital stock compensation or benefits payable or available to any Business Employee, other than annual salary and wage rate increases for 2018 in the Ordinary Course of Business not in excess of 4% per person, or (B) adopt, establish, amend or terminate any Seller Benefit Plan, or any agreement, plan, policy or arrangement that would constitute a Seller Benefit Plan if it were in existence on the date hereof, in each case, other than the renewal of group health or welfare plans made in the Ordinary Course of Business and applicable Law that do not materially increase the costs to the Company under such plans;
(vi) terminate (other than for cause), promote or change the title of any wholly-owned direct Business Employee (retroactively or indirect Subsidiary otherwise) with an annual compensation of $100,000, other than the promotion or hiring of replacement employees in the Ordinary Course of Business and to the extent that compensation expense of the Company would remain within the budgets of the Company following the hiring or promotion of such Persons;
(vii) enter (or commit to enter) into, amend, terminate or extend any collective bargaining or similar agreement, union Contracts or other Contracts with any labor union, works council, or associate representing any Business Employee (or enter into negotiations to do any of the foregoing);
(viii) enter into any commitment for capital expenditures of the Company to be made following the Company or another wholly-owned Subsidiary not Closing in excess of one hundred thousand dollars ($100,000) 100,000 individually or $250,000 in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesaggregate;
(bix) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree permit the Company to acquire (i) whether by merging merger or consolidating consolidation with, or by purchasing purchase of a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any properties, assets or businesses in excess of five hundred thousand dollars ($500,000) in any individual transaction 100,000 individually or one million dollars ($1,000,000) 250,000 in the aggregate during the Pre-Closing Periodaggregate, except purchases or sell, assign, license (other than pursuant to a Franchise Agreement), transfer, convey, otherwise dispose of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur or encumber or pledge any indebtedness for borrowed money material properties or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities assets of the Company, guarantee including by entering into any debt securities Contract or commitment for the purchase, lease, sublease, license, sublicense, occupancy or other direct or indirect transfer of another individual any real property;
(x) permit the Company to (i) change its present accounting methods or entityprinciples, except as required by GAAP; (ii) accelerate or delay the collection of accounts receivable, defer payment of accounts payable or otherwise alter or amend any working capital procedures and practices; or (iii) engage in any promotional sales, discount activity, or deferred revenue activity, in the case of clause (ii) and (iii) in a manner outside the Ordinary Course of Business;
(xi) permit the Company to incur any Indebtedness in excess of $250,000 in the aggregate;
(xii) permit the Company to settle, compromise, assign, release, waive or abandon any pending or threatened Legal Proceeding except any settlements which provide only for the payment of monetary damages, which amounts would paid in full prior to the Closing;
(xiii) permit the Company to commence any Legal Proceeding;
(xiv) permit the Company to enter into any Contract with a Related Person other than Franchise Agreements that will be terminated as of Closing;
(xv) permit the Company to abandon, modify, waive, terminate, fail to renew, or allow to lapse or permit any other change to any License;
(xvi) other than in the Ordinary Course of Business, terminate or amend any Company Contract or waive, release or assign any material rights, benefits or claims thereunder or enter into a Contract that would be deemed a Company Contract if in effect on the date hereof (other than Contracts entered into or necessary in the Ordinary Course of Business);
(A) offer or sell any franchise in contravention of applicable Law or (B) offer or sell any franchise outside the United States;
(xviii) make any material change to the terms of the Company’s policies or procedures with respect to its relationships with any of its franchisees, including any material change to the terms of policies relating to franchisee rent, royalty or advertising funds or any new material program or plan, or any material modification to any existing program or plan providing any franchisee incentives or franchisee economic assistance;
(xix) permit the Company to make an election to be treated as a corporation under the Code;
(xx) file or cause to be filed any Tax Return with respect to the Company other than in accordance with past practice or as required by applicable Law, amend any Tax Return, enter into any "keep well" closing agreement, or other agreement make or change any Tax election;
(xxi) permit the Company to maintain any financial statement condition of another Person enter into or agree to enter into any arrangement having merger or consolidation with any corporation or other entity, or acquire the economic effect securities or debt of any other Person or make any loans or advances to any Person or investments in any Person;
(xxii) permit the Company to adopt any plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or file a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; or
(xxiii) agree to do any of the foregoing or take any action or omission that would result in any of the foregoing.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company shall be permitted to maintain through the Closing Date the cash management systems of the Company, maintain the cash management procedures as currently conducted by the Company, and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business periodically settle intercompany balances consistent with past practice;
practices (eincluding through dividends and capital contributions and all such intercompany balances shall be settled at the Closing in accordance with their terms). Notwithstanding the restrictions set forth in Section 6.2(b)(iii) other than or elsewhere in connection with this Agreement, the repair or replacement of asset Company is allowed to dividend all Cash and Cash Equivalents of the Company to Seller on or its Subsidiaries prior to Closing; provided that any such dividends (including any dividends anticipated to be made following delivery of the Estimated Closing Statement) are taken into consideration in the ordinary course calculation of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7Estimated Cash.
Appears in 1 contract
Samples: Unit Purchase Agreement
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (Closing, except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) or as required consented to by law, (3) for actions approved by the Requisite Investors Buyer in writing (which approval consent shall not be unreasonably withheld, conditioned or delayed), Seller shall cause each of the Companies and LUHI, in each case substantially in accordance with past practice, (a) to use its respective reasonable best efforts to (i) conduct its respective business in the ordinary course consistent with past practices, (ii) maintain, preserve intact and retain its current relationships with customers and suppliers and other Persons with which it has material business relationships, (iii) keep available the service of its current officers and employees, (iv) comply with all applicable Laws and contractual obligations, (v) maintain and keep its properties and assets in the present condition, ordinary wear and tear excepted, and maintain available supplies and inventories in quantities consistent with past practice and (vi) maintain in full force and effect all Insurance Policies in effect on the date hereof, other than renewals of such policies for, or the entry into replacement polices providing, substantially similar levels of coverage; and (4b) except as explicitly set forth in Schedule 4.76.1, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declaremake any material change in its line of business;
(A) other than in the ordinary course of business consistent with past practice, set aside or pay enter into any dividends onContract that would be included in the definition of Material Contracts if it had been entered into as of the date of this Agreement, or make (B) amend or modify in any other distributions material respect, waive any material right under or terminate any Material Contract (or Contract described in respect of, clause (A));
(iii) amend any of its capital stock other than dividends and distributions in respect of the capital stock Organizational Document of any wholly-owned direct Company; effect or indirect Subsidiary of the Company to the Company authorize any restructuring, reorganization or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period complete or (ii) purchasepartial liquidation; reclassify, split, combine, redeem or otherwise acquiresubdivide, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, sell, deliver, grant, sell, pledge, dispose of or otherwise encumber encumber, directly or indirectly, any of its the Shares or any capital stock or other Equity Interests of any securities convertible into, Company; or allow any rights, warrants or options other Person to acquire, take any such capital stock at less than fair market valueof the foregoing actions;
(civ) make, declare, set aside, authorize or pay any dividend, or make any other distribution in respect of, any of Equity Interests of any Company other than (x) cash dividends paid in full prior to Closing and (y) cash dividends or distributions by one or more Companies to another Company;
(v) acquire or agree to acquire (i) whether by merging or consolidating with, or by purchasing agreeing to merge or consolidate with, or purchasing, or agreeing to purchase, Equity Interests in or substantially all, or a substantial portion material portion, of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, otherwise acquire) any business or any corporation, limited liability company, partnership, association, joint venture, limited liability company association or other entity Person or business organization or division thereof thereof;
(vi) (A) create, assume, incur or become obligated with respect to any Indebtedness, other than borrowings or draws on unsecured intercompany financing arrangements (all of which constitute Related Party Payables hereunder) in the ordinary course of business consistent with past practice, or (iiB) pay any amounts on any Indebtedness, including any amount of principal or interest (including PIK interest) thereon, except for the payment of interest (including PIK interest) that is required to be paid in cash in accordance with the terms of such Indebtedness as of the date hereof;
(vii) other than (A) the sale by LUHI of the $1 million Xxxxx insurance policy to the Seller, and (B) the sale by LUHI of the Buckhorn Legal Defense Costs Claims to Seller, in both cases, in connection with the Restructuring, sales of inventory and obsolete equipment in the ordinary course of business, sell, license, lease, sublease, mortgage, pledge or otherwise encumber, suffer to exist any Lien on (other than Permitted Liens), or dispose of or otherwise transfer any of properties, assets or equipment owned by any Company;
(viii) make any loans, investments, contributions or advances in or to any Person, except for loans or advances in the ordinary course of business consistent with past practice to any employee of the Companies for expense incurred in connection with the operation of the business of the Companies;
(ix) fail to make capital expenditures in accordance with Schedule 6.1(b)(ix);
(x) make any material change to its policies or practices regarding the extension of customer credit, sales of inventory, collection of accounts receivable or payment of accounts payable;
(xi) waive, release, settle or compromise any pending or threatened Action (A) having a value in excess of five hundred thousand dollars $250,000 individually or (I) $500,000) in any individual transaction or one million dollars ($1,000,000) 500,000 in the aggregate during (provided, however, in the Preevent that the Closing shall not have occun-ed within sixty (60) days of the date of this Agreement, such amount shall be increased to $1,000,000 in the aggregate), (B) relating to the transactions contemplated by this Agreement or (C) involving any (I) admission of wrongdoing by any Company or (II) recourse against, or obligation of, any Company other than the payment of monetary damages;
(xii) fail to renew any material Pennit that expires prior to the Closing PeriodDate;
(xiii) make any material change in any method of accounting or accounting practice by the Companies, except purchases for any such change required by reason of suppliesa concun-ent change in UK GAAP, equipment and inventory the Code or applicable Law;
(xiv) make or change any Tax election; settle or compromise any claim, notice, audit or assessment in respect of Taxes; adopt or change any method of Tax accounting; file any amended Tax Return (except as otherwise provided in Section 6.12(e), provided that the filing or amendment thereof could not reasonably be expected to adversely affect Buyer, the Companies or their respective Affiliates after the Closing); enter into any Tax allocation, indemnity, sharing, closing or similar Contract; surrender, settle or compromise any right to claim a Tax refund (other than any Tax refund set forth on Schedule 6.12(e), provided that the settlement thereof could not reasonably be expected to adversely affect Buyer, the Companies or their respective Affiliates after the Closing); or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(xv) except as required by Law or the existing terms of an Employee Benefit Plan, (a) increase, accelerate the vesting or payment of or accelerate the funding of, compensation payable to or other benefits provided to, or grant any bonus to, its directors, officers, employees or consultants, other than the payment of bonuses to non-management employees in the ordinary course of business consistent with past practice, (b) grant any rights to severance or termination pay or notice, or enter into or amend any employment agreement or severance agreement, (c) terminate, adopt, establish or amend any Employee Benefit Plan, or (d) hire, terminate (other than for cause), promote, demote or otherwise materially change the employment status or title of any of its officers or employees, other than non-management employees in the ordinary course of business consistent with past practice;
(dxvi) effectuate any “plant closing” or a “mass layoff” (ias defined in WARN or similar state law) incur affecting any indebtedness for borrowed money single site of employment or guarantee one or more facilities or operating units within any such indebtedness single site of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect employment of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practiceCompany;
(exvii) other than in connection with the repair grant, or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practicefail to renew, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle right or compromise license m any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsIntellectual Property Right; or
(ixviii) authorize, commit or agree or otherwise commit to take any of the actions set forth described in the foregoing subsections (a) through (h) of this Section 4.76.l(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Bway Intermediate Company, Inc.)
Conduct of the Business. Except (a) During the period commencing as otherwise of the date hereof, and ending on the earlier of the Closing, or if earlier terminated, the termination of this Agreement in accordance with Article IX, the Selling Shareholders shall use reasonable efforts to cause the Company to (vi) carry on the Business in the Ordinary Course in substantially the same manner as heretofore conducted, (ii) use reasonable efforts to keep available the services of the present officers and employees of the Company and preserve the relationships of the Company with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them and (iii) maintain its current accounting methods or practices (other than as may be required by lawGAAP). Without limiting the generality of the foregoing, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) unless specifically consented to by Purchaser in writing by Requisite Investors (including e-mail) (such consent not to be unreasonably withheld, delayed or conditioned), during or expressly set forth in this Agreement or the period from other Documents and subject to Section 5.02(b) below, the Selling Shareholders shall ensure that the Company does not:
(1) do anything that would interfere with the consummation of the transactions contemplated in this Agreement or constitute a breach of any of the representations and warranties contained in Article III;
(2) incur any Indebtedness other than in the Ordinary Course;
(3) assume, guarantee, endorse (other than endorsements for deposit or collection in the Ordinary Course), or otherwise become responsible for obligations of any other Person other than another Acquired Company;
(4) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver, directly or indirectly, by any means, any additional Company Shares;
(5) declare, set aside, make or pay any distribution or dividend or enter into any voting agreement with respect to the Company Shares;
(6) reclassify, combine, split or subdivide any Company Shares;
(7) make any change to its Fundamental Documents;
(8) create or permit the creation of any Lien that is not a Permitted Lien, or sell, lease, transfer, license or otherwise dispose of any of the Company’s assets except in the Ordinary Course;
(9) cancel, release or assign any Indebtedness owed to it;
(10) (A) make any investment or commitment of a capital nature either by acquisition of Securities, contributions to capital, business, asset or product line acquisitions, or otherwise, form or acquire any Subsidiary or (B) make any capital expenditures other than in the Ordinary Course exceeding CHF 100,000 individually or CHF 500,000 in the aggregate;
(11) adopt a plan of partial or complete liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked;
(12) other than in the Ordinary Course, (A) terminate any Material Contract (other than in accordance with its terms); (B) materially amend, modify, violate or waive any material term of any Material Contract; (C) enter into or renew (other than automatic renewal) any Contract which would constitute a Material Contract if existing on the date of this Agreement;
(13) (A) increase the salaries, wages, other compensation or benefits of any officer or director of the Company or executive member of the Management Team other than in accordance with the terms and conditions of any Contract existing as of the date of this Agreement or included in the Disclosure Documents; (B) pay any compensation to the earlier or for any officer or employee or executive member of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses Management Team other than in the ordinary course Ordinary Course, pursuant to employment arrangements in all material respects as conducted at effect on the date of this Agreement, and (b) Agreement or pursuant to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company and/or otherwise resulting from or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Exit Bonus Plan, ; (C) make any shares of capital stock material advance or loan to any officer or director of the Company or executive member of the Management Team; (D) materially modify the terms of the relationship of any officer, director or employee with the Company; (E) enter into, materially modify or terminate (other securities thereof than for Cause) any employment Contract or extend any rightsoffer of employment (except in the Ordinary Course); or (F) enter into any collective bargaining agreement, warrants trade union agreement or options to acquire any such shares similar agreement or other securitiesarrangement;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f14) make, change or rescind revoke any material election relating in respect of Taxes; adopt or change any accounting method in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(15) (A) prepay any long-term Indebtedness, (B) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) other than in the Ordinary Course, other than payment, discharge or satisfaction of liabilities reflected or reserved against in the Company Balance Sheet, Transaction Expenses (and any other Indebtedness that is explicitly contemplated by this Agreement to be repaid by the Purchaser at the Closing) , (C) fail to pay any debts and Taxes in a timely manner, subject to good faith disputes over such debts or Taxes or (D) fail to pay or perform other obligations in a timely manner subject to good faith disputes over whether payment or performance is owing;
(16) (A) accelerate or delay the collection of notes or Accounts Receivable in advance of or beyond their regular due dates or the dates on which the same would have been collected in the Ordinary Course or (B) delay or accelerate the payment of accounts payable in advance of their due date or the date such Liabilities would have been paid in the Ordinary Course;
(17) write up, write down or write off the book value of any of the assets of the Company, except as required by GAAP for Accounts Receivable that are not collectible, or the depreciation and amortization or impairment of assets in accordance with GAAP consistently applied;
(18) (A) waive, release, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statementsclaims or right to make claims, settle any Proceeding or amend (B) initiate any material Tax Returnlitigation or arbitration proceeding;
(g19) adopt, or enter into make any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code material change in the ordinary course of business consistent manner in which the Company extends discounts or credits to customers, otherwise deals with past practices) any existing, Company Plans, arrangements its customers or programs, severance agreement, deferred compensation arrangement distributors or employment agreement with any officers, directors markets its products or employees, (2) grant any increases in employee compensationservices, other than in the ordinary course Ordinary Course;
(20) transfer, other than in the Ordinary Course, assign, abandon, permit to lapse or exclusively license to or from any Person any Intellectual Property rights, other than pursuant to promotionsthe terms of any Contract as in existence on the date of this Agreement;
(21) terminate any material Insurance Policy, or materially reduce the amount of any insurance coverage provided by the Insurance Policies, other than pursuant to the terms of any Insurance Policies as in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsexistence on the date of this Agreement; or
(i22) resolve or agree or otherwise commit to take any of the foregoing actions.
(b) No prior written consent of Purchaser shall be required for any of the actions set forth and matters referred to under Section 5.02(a) to the extent that the undertaking of such actions and matters (1) is consistent with the business or investment plans disclosed to, and as they were approved in writing (including by E-Mail) by, Purchaser, (2) is required to comply with this Agreement or by mandatory Law or by any binding decision issued by a court or a competent authority or (3) is under circumstances of emergency restricting the foregoing subsections (a) through (h) feasibility of this Section 4.7obtaining the Purchaser’s consent therefor and such that the failure to undertake such action or matter would jeopardize the Business as a going concern, provided, that Purchaser shall be informed and consulted on the undertaking of such actions and matters as soon as possible following the expiration or termination of the prohibition, and if possible, in advance of taking any such action, even if Purchaser is unable to provide its consent by the relevant deadline.
Appears in 1 contract
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at From the date of this Agreement, and (b) to hereof until the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoingClosing, except (1) as otherwise expressly required or permitted by this Agreement, (2i) as required by lawapplicable Law, (3ii) for actions approved by the Requisite Investors as Parent shall otherwise consent in writing (writing, which approval consent shall not be unreasonably withheld, conditioned or delayed, (iii) as set forth on Schedule 6.6(a), or (4iv) as required pursuant to this Agreement or the Midstream Contribution Agreement, (A) Xxxxxxxx HoldCo and the Company shall, and shall cause each member of the Company Group to, (1) conduct the business of the Company Group in the ordinary course of business consistent with past practice, including in respect of turnarounds, turnaround planning, routine maintenance and routine preventive maintenance activities, asset inspections and repairs (including in the case of any Casualty Event) and such capital expenditures and projects as are in the Company Group’s operational plans for such period, and (2) use commercially reasonable efforts to (I) maintain and preserve intact the current organization, operations, assets and franchise of the Company Group and (II) to preserve the rights, franchises, goodwill and relationships of the Company Employees, customers, suppliers, vendors, lessors, lessees, parties to easements, regulators and others having relationships with the Company Group, and (B) the Company shall not, and shall cause the Company Group not to:
(i) create or allow for the creation of any Encumbrance (other than a Permitted Encumbrance) on any of the material assets of the Company Group;
(ii) authorize for issuance, issue, sell or deliver (A) any equity or voting interests in any member of the Company Group, other than issuances of equity interests in one member of the Company Group to another member of the Company Group, or (B) any securities convertible into or exchangeable for, or evidencing the right to subscribe for or acquire any equity or voting interests in any member of the Company Group, in each case, other than in connection with the conversion of any member of the Company Group to a limited liability company;
(iii) split, combine, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any outstanding capital stock or other equity interests of the Company or any Company Subsidiary;
(iv) assume, incur or guarantee any Indebtedness, other than (A) Indebtedness referred to in clauses (d), (h) (with respect to Indebtedness referred to in clause (d) of the definition thereof) and (i) (with respect to Indebtedness referred to in clause (d) of the definition thereof), (B) under the Specified Funded Indebtedness, (C) any Indebtedness incurred in connection with a Permitted Encumbrance or (D) performance bonds, letters of credit or hedging arrangements in the ordinary course of business;
(v) cancel any material debts or waive any material claims or rights that, but for such cancellation or waiver, as applicable, would have remained outstanding as of the Closing;
(vi) adopt or propose any amendment to the organizational documents of the Company or any other member of the Company Group in a manner (A) adverse to the Parent Parties or (B) that could delay or prevent the consummation of the Contemplated Transactions, in each case, other than in connection with the conversion of any member of the Company Group to a limited liability company;
(vii) enter into, amend or modify in any material respect or terminate any Contract that is or would be a Xxxxxxxx Material Contract (other than the Company Revolving Credit Facility) or Xxxxxxxx Lease if in existence on the date hereof, or otherwise waive, release or assign any material rights, claims or benefits thereunder, in each case other than in the ordinary course of business consistent with past practice;
(viii) change any of the material accounting, financial reporting or Tax principles, practices or methods used by the Company or any Company Subsidiary, except as may be required in order to comply with changes in GAAP or applicable Law, including Tax Laws;
(ix) make, change or revoke any material Tax election (but excluding any election that must be made periodically in the ordinary course of business and is made consistent with past practice), enter into any material closing agreement, surrender any right to a material Tax refund, settle or compromise any Income Tax or other material Tax Proceeding for an amount materially in excess of the amounts accrued or reserved with respect thereto in the Financial Statements, or consent to any extension or waiver of the limitation period applicable to any Income Tax or other material Tax claim or assessment;
(x) make any filings or registrations with any Governmental Authority, except for filings and registrations made in the ordinary course of business consistent with past practice;
(xi) acquire any material business or Person, by merger, consolidation, purchase of assets or equity interests or otherwise;
(xii) acquire, lease, transfer, sell, assign or dispose of any assets (excluding the sale or other disposition of Hydrocarbon Inventory in the ordinary course of business consistent with past practice and the sale or other disposition of equipment that is surplus, obsolete or replaced in the ordinary course of business consistent with past practice) that, taken as a whole, are material to the Company Group;
(xiii) cancel, terminate, amend, allow to lapse or fail to renew (on materially the same terms or on terms not materially less favorable to the Company Group) or maintain in full force and effect any of the Insurance Policies, provided that in no event shall Xxxxxxxx HoldCo, the Company, or the Company Group be required to pay an annual aggregate premium for any such Insurance Policy in excess of one hundred fifty percent (150%) of the current annual aggregate premium for such Insurance Policy;
(xiv) dissolve, wind up or liquidate any member of the Company Group;
(xv) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to cause any of the conditions set forth in Article 7 not being satisfied by the End Date;
(xvi) other than as required by the terms of any Xxxxxxxx Benefit Plan in effect as of the date hereof, (A) establish, adopt or materially amend any Xxxxxxxx Benefit Plan or any collective bargaining agreement, other than any offer letters providing solely for base compensation and participation in broad-based Xxxxxxxx Benefit Plans entered into with new or prospective hires in the ordinary course, or (B) increase the compensation of any Xxxxxxxx Employee, other than such increases that are (x) in the ordinary course of business consistent with past practice and, (y) in the reasonable judgment of the management of the Company, reasonably necessary to comport with prevailing market requirements;
(xvii) approve, make or commit any member of the Company Group to any growth capital project in excess of $40,000,000;
(xviii) amend, modify or alter the Reorganization Agreement or any of the agreements, documents, schedules or certificates contemplated thereby or related to the Company Reorganization, or otherwise cause the Reorganization Agreement to be amended, modified or altered in any way, or enter into any additional documents, instruments or assurances of transfer, conveyances, assignments or assumptions to effectuate the transactions contemplated by the Reorganization Agreement; or
(xix) agree to take any of the foregoing actions. Notwithstanding the foregoing and without requiring the consent of Parent, the Company and the other members of the Company Group may, in their reasonable discretion, take any and all actions (x) necessary to prevent or minimize injury to persons or damage to property in the case of an emergency or a health, environmental or safety concern involving the Company Group (including to mitigate or remedy the endangerment of health or safety of any Person or the Environment or in connection with any forced outage or force majeure event), (y) necessary to comply with a Xxxxxxxx Lease or any recorded document affecting the Xxxxxxxx Real Property or (z) necessary to address regulatory requirements or other requirements of applicable Law (including preliminary curtailment or similar operating decisions with respect to the Facilities taken as a safety precaution in the reasonable good faith discretion of the management of the Company) and the Company shall provide advance notice where reasonable and otherwise, as promptly as reasonably practicable, inform Parent of any such actions taken outside the ordinary course of business.
(b) From the date hereof until the Closing, except (i) as required by applicable Law, (ii) as the Company shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, (iii) as set forth in on Schedule 4.76.6(b), during or (iv) as required or contemplated pursuant to this Agreement (including any Xxxxx Cross Refinery Divestiture Action) or the Pre-Closing PeriodMidstream Contribution Agreement, the Company Parent shall not, and shall cause its Subsidiaries not to:
(a) (i) declareprior to the receipt of the Parent Stockholder Approval, set aside issue any equity interests in any Parent Entity or pay any dividends onequity interests convertible into any equity interests of any Parent Entity, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned (A) issuances by a direct or indirect wholly owned Subsidiary of the Company Parent of equity securities to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company such Person’s parent or any other securities thereof direct or any rightsindirect wholly owned Subsidiary of Parent, warrants (B) (1) the grant of Parent Restricted Stock Unit Awards, Parent Performance Share Unit Awards or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of similar awards under the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory Parent Stock Plans in the ordinary course of business consistent with past practicepractice (including as to timing, amount and purpose of each such issuance) or (2) the issuance of shares of Parent Common Stock upon the settlement of Parent Restricted Stock Unit Awards or Parent Performance Share Unit Awards outstanding on the date of this Agreement or issued after the date of this Agreement in accordance with this Agreement, in each case, in accordance with their terms as in effect on the date of issuance or (C) issuances of Parent Common Stock through one or more public or private offerings or other transactions of up to five percent (5%) of the shares of Parent Common Stock issued and outstanding as of the date of this Agreement, in the aggregate;
(dii) (i) incur issue any indebtedness for borrowed money equity interests in any Parent Entity or guarantee any such indebtedness equity interests convertible into any equity interests of another individual any Parent Entity to any current or entityformer director, issue or sell any debt securities or warrants officer, employee, independent contractor or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect Representative of any Parent Entity, other than the grant of the foregoingany Parent Restricted Stock Unit Awards, except for (A) borrowings and increases in letters of credit permitted Parent Performance Share Unit Awards or similar awards under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances Parent Stock Plans in the ordinary course of business consistent with past practicepractice (including as to timing, amount and purpose of each such issuance);
(eiii) adopt any amendment to the organizational documents of any Parent Entity in a manner adverse to the Company or Xxxxxxxx HoldCo;
(iv) prior to the receipt of the Parent Stockholder Approval, directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to Parent and its Subsidiaries, in each case, other than any acquisitions as to which the aggregate amount of the consideration paid or transferred by Parent and its Subsidiaries in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars (all such acquisitions would not exceed $100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period250,000,000;
(fv) makedirectly or indirectly acquire or agree to acquire (A) by merging or consolidating with, change purchasing a substantial equity interest in or rescind a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material election relating to TaxesParent and its Subsidiaries, settle in each case, other than acquisitions that would not reasonably be expected to prevent or compromise any material Tax liability for an amount greater than materially delay the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax ReturnClosing;
(gvi) adoptdissolve, wind up or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreementliquidate Parent;
(1vii) enter into any newdeclare, issue, pay or make, or amend set a record date prior to the Closing with respect to, any dividend or terminate distribution in respect of any of its capital stock or other equity securities except the (A) declaration and payment of dividends or distributions from any direct or indirect wholly owned Subsidiary of Parent to Parent or any other than amendments required wholly owned Subsidiary thereof, or (B) declaration of quarterly dividends on the Parent Common Stock in accordance with the organizational documents of Parent not to maintain the tax qualified status exceed $0.35 per share of such plans under the Code in the ordinary course Parent Common Stock prior to May 2022 and $0.40 per share of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice Parent Common Stock thereafter (which dividend amount shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant be adjusted for any stock options dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, or stock awards any similar event);
(viii) take any action (or omit to take any action) if such action (4or omission) make would reasonably be expected to cause any annual or long-term incentive awardsof the conditions set forth in Article 7 not being satisfied by the End Date; or
(iix) agree or otherwise commit to take any of the foregoing actions.
(c) In furtherance of, and without limiting the Parties’ obligations in this Section 6.6, Xxxxxxxx HoldCo shall, from and after the date hereof until the Closing, cause each member of the Company Group to use commercially reasonable efforts to take the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7on Schedule 6.6(c).
Appears in 1 contract
Samples: Business Combination Agreement (HollyFrontier Corp)
Conduct of the Business. Except (a) From the date of this Agreement until the Closing (or the earlier termination of this Agreement pursuant to Article VIII), except as (x) set forth on Schedule 5.01, (y) required by Law or (z) required to comply with COVID-19 Measures or otherwise taken (or not taken) by the Company or its Subsidiaries reasonably and in good faith to respond to COVID-19 or COVID-19 Measures in a manner and form substantially consistent with any actions taken (or not taken) by the Company or its Subsidiaries prior to the date of this Agreement in response to or in connection with COVID-19 or COVID-19 Measures, the Company will, and will cause its Subsidiaries to, use commercially reasonable efforts to conduct its and its Subsidiaries' business in the Ordinary Course of Business and preserve intact the Company and its Subsidiaries' business organization and current business relationships with third parties in the Ordinary Course of Business (including lessors, licensors, suppliers, distributors, customers, employees, lenders, regulators and others having business relationships with the Company or any of its Subsidiaries) in all material respects; provided that (i) no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.01(b) will be deemed a breach of this Section 5.01(a), unless such action would constitute a breach of one or more of such provisions, (ii) the Company and its Subsidiaries' failure to take any action prohibited by Section 5.01(b) will not be a breach of this Section 5.01(a); and (iii) in the event that the Company or its Subsidiaries reasonably and in good faith determines that it is necessary to take action in response to or in connection with COVID-19 or COVID-19 Measures, then, to the extent reasonably practicable, the Company will provide notice to Purchaser and the parties will reasonably consult and cooperate before taking such action.
(b) From the date of this Agreement until the Closing (or the earlier termination of this Agreement pursuant to Article VIII), except as (v) required otherwise specifically contemplated or permitted by lawthis Agreement, (w) disclosed in the Disclosure Statementset forth on Schedule 5.01, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors Purchaser (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement (y) required by Law or (z) required to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance comply with its terms COVID-19 Measures or otherwise taken (the “Pre-Closing Period”or not taken) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, Subsidiaries reasonably and in good faith to respond to COVID-19 or COVID-19 Measures in a manner and form substantially consistent with past practice as conducted any actions taken (or not taken) by the Company or its Subsidiaries prior to the date of this Agreement. Without limiting the generality of the foregoing, except Agreement in response to or in connection with COVID-19 or COVID-19 Measures (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayedsubject to Section 5.01(a)(iii), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period), the Company shall will not, and shall cause will not permit its Subsidiaries not to:
(a) (i) change, modify or amend the Organizational Documents of the Company or any of its Subsidiaries;
(ii) make, declare, set aside aside, establish a record date for or pay any dividends ondividend or distribution, or make any other distributions in respect of, any of its capital stock other than any dividends and or distributions in respect of the capital stock of from any wholly-owned direct or indirect Subsidiary of the Company to the Company or another any other wholly-owned Subsidiary not Subsidiaries of the Company;
(iii) enter into, assume, assign, partially or completely amend or modify or terminate (excluding any expiration in excess of one hundred thousand dollars accordance with its terms) any labor or collective bargaining or similar agreement ($100,000including agreements with works councils and trade unions and side letters) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of to which the Company or any other securities thereof its Subsidiaries is a party or any rights, warrants or options to acquire any such shares or other securitiesby which it is bound;
(biv) (A) issue, deliver, grantsell, selltransfer, pledge, dispose of or otherwise encumber create, impose or place any Lien (other than a Lien arising in connection with the Credit Facility for which prompt written notice is provided to Purchaser) on any shares of its capital stock or any other equity or voting securities convertible into, of the Company or any rightsof its Subsidiaries or (B) issue, sell, redeem, purchase, dispose of, grant or deliver any options, warrants or options other rights to acquire(including upon conversion, exchange or exercise) any such shares of capital stock at less than fair market valueor any other equity or voting securities of the Company or any of its Subsidiaries;
(cv) acquire sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or grant any Lien (other than Permitted Liens) on, or otherwise dispose of, any material assets (including the Owned Real Property), rights or properties of the Company and its Subsidiaries, other than the sale or license of Software, goods and services to customers in the Ordinary Course of Business, or the sale or other disposition of inventory in the Ordinary Course of Business;
(vi) sell, license, assign, transfer, waive, abandon, allow to lapse, fail to maintain or otherwise dispose of any Intellectual Property (other than (A) nonexclusive licenses granted in the Ordinary Course of Business and (B) with respect to Intellectual Property that the Company and its Subsidiaries have determined, in the exercise of their commercially reasonable business judgment, to be immaterial or obsolete) or disclose any Company Trade Secrets to any Person (other than in the Ordinary Course of Business to a Person bound by adequate, written confidentiality obligations);
(vii) (A) pay, discharge, settle, satisfy, cancel or compromise any claim, Liabilities, or Indebtedness owed to the Company or any of its Subsidiaries in excess of $250,000 in the aggregate, (B) settle any pending or threatened Legal Proceeding (I) if such settlement would require (x) payment by the Company in an amount greater than $250,000 or (y) any of the Company or its Subsidiaries to perform or satisfy any continuing obligations, (II) to the extent such settlement includes an agreement to accept or concede injunctive relief or (III) to the extent such settlement involves a Governmental Body or alleged wrongdoing, or (C) agree to modify any confidentiality or similar Contract to which the Company or any of its Subsidiaries are a party;
(viii) (A) increase in any material manner the compensation of any of its officers or employees, except in the Ordinary Course of Business or as required by any Law or pursuant to any agreement set forth on Schedule 2.14(a), (B) materially increase the benefits under any Company Plan, adopt any new Company Plan, amend, modify or terminate any existing Company Plan, except as required by applicable Law and except for any bonus or similar arrangement that is a Transaction Expense, (C) hire or terminate any officer of the Company or any of its Subsidiaries or (D) enter into, amend or terminate any material employment, retention, change in control agreement or other similar arrangement with any employee, except as otherwise permitted by clause (B) hereof;
(ix) directly or indirectly acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stockassets of, or other ownership interests by purchasing all of or a substantial equity interest in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, associationlimited liability company, joint venture, limited liability company association or other entity or Person or division thereof thereof;
(x) make any investment (by contribution to capital, property transfers, purchase of securities or otherwise) in, or make any loans or advance any money or other property to any Person, except for (A) travel and similar advances to employees in the Ordinary Course of Business, (B) prepayments and deposits paid to suppliers of the Company or any of its Subsidiaries in the Ordinary Course of Business or (iiC) trade credit extended to customers of the Company or any of its Subsidiaries in the Ordinary Course of Business;
(xi) enter into, assume, assign, amend, modify, renew or terminate (excluding any expiration in accordance with its terms) any assets Material Contract, or any lease related to the Leased Real Property;
(xii) redeem, purchase or otherwise acquire, any shares of capital stock (or other equity interests) of the Company or any of its Subsidiaries or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of capital stock (or other equity interests) of the Company or any of its Subsidiaries;
(xiii) adjust, split, combine, subdivide, recapitalize, reclassify, distribute or like change in excess respect of five hundred thousand dollars any shares of capital stock or other equity interests or securities of the Company or any of its Subsidiaries;
($500,000xiv) make any material change in its accounting principles, practices or methods of accounting, other than as may be required by a change in applicable Law, GAAP or regulatory guidelines;
(xv) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or its Subsidiaries (other than the Transaction) or file a petition in bankruptcy under any individual transaction provisions of federal or one million dollars state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
($1,000,000xvi) make, change, or rescind any income or other material Tax election; adopt or change any material financial or Tax accounting methods, principles, or practices; file any amended income or other material Tax Return; settle or compromise any income or other material Tax Liability; enter into any closing agreement with respect to Tax; consent to any extension or waiver of the limitations period applicable to any income or other material Tax claim or assessment; surrender or allow to expire any right to claim a refund; enter into any Tax sharing or Tax indemnification agreement or similar agreement (except, in each case, for such agreements that are in the aggregate during the Pre-Closing Period, except purchases Ordinary Course of supplies, equipment Business and inventory not primarily relating to Taxes); request a ruling or similar guidance from any Governmental Body with respect to any Tax matter; or file any Tax Return in the ordinary course of business consistent a manner inconsistent with past practice;
(dxvii) directly or indirectly, incur, or modify the terms of any Indebtedness (other than (A) Indebtedness under the existing Credit Facility of the Company and its Subsidiaries or (B) other than any items referred to in any of subclauses (h), (i) incur any indebtedness or (j) of the definition of Indebtedness set forth in this Agreement, in each case with respect to subclauses (A) and (B), for borrowed money which prompt written notice is provided to Purchaser; provided, that, with respect to items referred to in subclause (i) of the definition of Indebtedness set forth in this Agreement, (I) no such written notice is required if such Taxes are incurred or guarantee modified in the Ordinary Course of Business and not material in amount, and (II) any such indebtedness of another individual actions remain subject to Section 5.01(b)(xvi)), or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Companyassume, guarantee or endorse, or otherwise become responsible for, the obligations of any debt securities of another individual or entity, enter into any "keep well" or other agreement Person for Indebtedness;
(xviii) voluntarily fail to maintain any financial statement condition of another Person or enter into any arrangement having the economic in full force and effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses;
(2xix) between such Subsidiaries make any capital expenditures that (A) exceed, on a monthly basis, $1,000,000 with respect to new showroom openings, (B) exceed, on a monthly basis, $750,000 with respect to capitalized software development or (C) in the aggregate exceed $500,000 with respect to capital expenditures not otherwise described in the foregoing subclauses (A) and (B) customary immaterial advances in the ordinary course of business consistent with past practice);
(exx) other than in connection with marketing or advertising expenditures that exceed 110% of the repair monthly forecast amounts set forth on Schedule 5.01(xx); or
(xxi) enter into any agreement, or replacement otherwise become obligated, to take any action prohibited under this Section 5.01. For the avoidance of asset doubt, nothing contained herein will (i) permit Purchaser to control the operation of the Company and its Subsidiaries prior to the Closing or (ii) prevent the Company or its Subsidiaries from reasonably and in the ordinary course of business consistent with past practice, make good faith taking or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit failing to take any action, including the establishment of the actions set forth any policy, procedure or protocol, in the foregoing subsections (a) through (h) of response to COVID-19 or COVID-19 Measures, in accordance with this Section 4.75.01.
Appears in 1 contract
Conduct of the Business. Except as otherwise (va) required by lawDuring the Interim Period, the Vendor shall:
(wi) disclosed carry on the Business in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) ordinary course (except as may be otherwise expressly provided required or permitted contemplated by the terms provisions of this Agreement) and in compliance with applicable Laws and perform its obligations under all Contracts (including Leases and Equipment Leases) including the payment of all Taxes due and payable;
(ii) use reasonable commercial efforts to preserve the Business and the goodwill of suppliers, customers and others having business relations with the Vendor in connection with the Business and maintain in full force and effect all of the Vendor’s Intellectual and Industrial Property and all licence agreements or arrangements with respect thereto;
(iii) use reasonable commercial efforts to retain the services of the present executives, Employees, consultants and advisors of or to the Business (except as may be otherwise required or contemplated by the provisions of this Agreement); and
(iv) continue in full force and effect the insurance coverage on the Business and the Purchased Assets, take out such additional insurance as may be required in the ordinary course of the Business and give all notices and present all claims under all insurance policies in a due and timely fashion and promptly advise the Purchaser in writing of any such claims.
(b) During the Interim Period, the Vendor shall not (except as may be otherwise required or contemplated by the provisions of this Agreement), without the Company prior written consent of the Purchaser:
(i) become a party to or bound by or subject to any new agreement, contract or commitment with any Interested Person relating to the Business or amend or concur in the amendment of any such existing agreement, contract or commitment or make or authorize any payment to or for the benefit of any Interested Person other than such as is required or contemplated by an existing policy or practice as to periodic review of Employee Benefit Plans, or as otherwise required by applicable Laws;
(ii) make any budgeted capital expenditure as of the date hereof relating to the Business in excess of $50,000 and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses which are in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) Business or authorize any new capital expenditures relating to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not Business in excess of one hundred thousand dollars ($100,000) 100,000 in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesaggregate;
(biii) issue, deliver, grant, sell, pledge, dispose become a party to or bound by or subject to any new agreement or arrangement with respect to Employee benefits (other than an employment or personal services agreement or arrangement which is terminable by the Vendor without liability on no more than 30 days’ notice) or amend or concur in the amendment of or otherwise encumber increase any payment or obligation under any existing agreement or arrangement with respect to Employee Benefit Plans other than such as is required or contemplated by an existing policy or practice as to periodic review of its capital stock or any securities convertible intoEmployee Benefit Plans, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueas otherwise required by applicable Laws;
(civ) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion terminate the employment of any manager of the stockBusiness or grant any severance or termination pay to any manager of the Business;
(v) pay a bonus to an employee other than as specified in written employment agreements, copies of which having been provided to Purchaser;
(vi) make any change in the rate or form of compensation or remuneration payable or to become payable to any manager or other ownership interests inemployee which is outside the ordinary course;
(vii) take any step to dissolve, wind-up or substantial portion otherwise affect its continuing corporate existence or amalgamate or merge with any person or amend the Vendor’s Articles or by-laws;
(viii) sell or lease any of assets ofthe Purchased Assets other than in the ordinary course of business;
(ix) cancel, waive or by vary the terms of any other manner, any business debt owing to or any corporation, partnership, association, joint venture, limited claim or right of the Vendor relating to the Business;
(x) incur any obligation or liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in relating to the aggregate during the Pre-Closing Period, Business except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceor make, authorize or accept any early payment of any such existing obligation or liability;
(dxi) (i) incur create or permit the creation of any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of new Encumbrance on any of the foregoing, Purchased Assets (except for (Aany Permitted Encumbrance) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries amend or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances concur in the ordinary course amendment of business consistent with past practiceany such existing Encumbrance;
(exii) terminate, enter into, amend or otherwise modify in any Material respect any Material Contracts, other than in connection with respect to the repair or replacement entering into of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodcustomer contract;
(fxiii) maketerminate, change transfer, assign, modify or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statementschange, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensationrights under, any of the Vendor’s Intellectual and Industrial Property other than in the ordinary course of business;
(xiv) revalue upward any of the Purchased Assets set forth on the balance sheet that is part of the Annual Financial Statements or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsPurchased Assets acquired after the date of the Annual Financial Statements; or
(ixv) agree take or otherwise commit to take refrain from taking any other action that would cause any of the actions set forth in representations and warranties of the foregoing subsections (a) through (h) Vendor under this Agreement or any Closing Document to be inaccurate, false or misleading; or agree or become bound to do any of this Section 4.7the foregoing.
Appears in 1 contract
Conduct of the Business. Except (a) From the Effective Date until the earlier of the Closing or the termination of this Agreement pursuant to Section 7.1 (the “Interim Period”), except as (i) otherwise (v) required expressly contemplated or expressly permitted by lawthis Agreement, (wii) disclosed in the Disclosure Statementset forth on Schedule 5.1(a), (x) required by this Agreement or the Chapter 11 Plan or (yiii) consented to in writing by Requisite Investors Investor (such consent not to be unreasonably withheld, delayed or conditioned), during (iv) required by any Lease or Contract to which the period from Company or any of its Subsidiaries is a party that is disclosed in the date of this Agreement Disclosure Schedules and made available to the earlier of the Effective Date and the date on which this Agreement is terminated Investor or as required by applicable Law, or (v) in accordance connection with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)any Extraordinary Event Response, AEP Holdco shall cause the Company and each of the Company’s Subsidiaries to use commercially reasonable efforts to conduct its respective business in the Ordinary Course of Business (including with respect to the Company’s and its Subsidiaries’ management of their respective levels of working capital, levels of cash and cash equivalents, and capital expenditures, in each case in the Ordinary Course of Business), and AEP Holdco shall cause the Company and each of the Company’s Subsidiaries shall to use their respective commercially reasonable efforts to (a) conduct their businesses other than in the ordinary course case of the following clauses (3) and (4), in which case AEP Holdco shall cause the Company and each of the Company’s Subsidiaries at all times to) (1) preserve in all material respects the goodwill, reputation and present relationships with suppliers, customers, Governmental Bodies and others having significant business relationships with the Company or any of its Subsidiaries, (2) maintain and renew in the Ordinary Course of Business their respective insurance policies (or obtain replacement or substitute insurance policies providing substantially similar coverage) and material Permits, (3) conduct and make all Affiliate Transactions in compliance in all material respects with Section 2.14(a) of the Operating Agreement as conducted at if the date Operating Agreement were in effect as of this Agreementthe Effective Date, and (4) comply in all respects with the terms of the AEP TransCo Note, including payment of all amounts as and when due pursuant to the AEP TransCo Note. The failure to take any action prohibited by Section 5.1(b) shall not be a breach by AEP Holdco of this Section 5.1(a).
(b) to During the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoingInterim Period, except as (1w) as otherwise expressly required contemplated or expressly permitted by this Agreement, (2x) as required by lawset forth on Schedule 5.1(b), (3y) for actions approved by the Requisite Investors consented to in writing by Investor (which approval shall such consent not to be unreasonably withheld, conditioned delayed or delayed), conditioned) or (4z) as set forth in Schedule 4.7, during the Pre-Closing Periodrequired by applicable Law, the Company shall not, and shall cause its Subsidiaries shall not (and AEP Holdco shall not permit the Company and each of the Company’s Subsidiaries to:):
(a) (i) declaretake any action that would require consent from the Investor Member or an Investor Manager (in each case, set aside as such terms are defined in the Operating Agreement) under the Operating Agreement if the Operating Agreement were in effect as of the Effective Date (including Article VIII thereof) (and assuming that Investor Member owns all Purchased Interests as of the Effective Date);
(ii) amend or pay any dividends on, or make any other distributions in respect of, modify any of its capital stock other than dividends and distributions in respect Organizational Documents or the terms of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company AEP TransCo Note in a manner that would reasonably be expected to be adverse to Investor, the Company or another wholly-owned Subsidiary not any of its Subsidiaries;
(iii) take any action that would result in Leakage;
(iv) create, issue, acquire, reclassify, combine, split, subdivide, redeem, sell, pledge, encumber or otherwise dispose of any of its Equity Interests or any options, warrants, convertible or exchangeable securities, subscriptions, rights, phantom equity, equity appreciation rights, calls or commitments with respect to its Equity Interests;
(v) without limiting the need for consent pursuant to subclause (i) above, create, incur, assume or guarantee any Indebtedness in excess of one hundred thousand dollars $75,000,000 other than, in each case, ($100,000A) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with any Extraordinary Event Response, (B) Existing Indebtedness and guarantees under Existing Indebtedness, (C) intercompany Indebtedness solely among the Chapter 11 Plan, any shares Company and its Subsidiaries or intercompany guarantees of capital stock Indebtedness of the Company or any other securities thereof of its Subsidiaries or any rights, warrants (D) purchases of equipment or options to acquire any such shares or other securitiesmaterials made under conditional sales Contracts entered into in the Ordinary Course of Business;
(bvi) issuemerge or consolidate with any other Person or adopt a plan of liquidation, deliverdissolution, grantmerger, sell, pledge, dispose of consolidation or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueother reorganization;
(cvii) acquire make, change or agree revoke any material Tax election (including any entity classification election), settle or compromise any Tax claim, Proceeding, assessment or liability or claim for a refund of Taxes, change (or request any Governmental Body to acquire change) any aspect of its method of accounting for Tax purposes, including any adjustment under Section 481(a), change its annual Tax accounting period, enter into any closing agreement or other binding written agreement relating to Taxes with any Governmental Body, file any amended Tax Return, surrender any claim for a refund of Taxes, file any Tax Return other than one prepared in a manner consistent with past practice, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (other than pursuant to an extension of time to file any Tax Return obtained in the Ordinary Course of Business); provided, however, that the foregoing limitations shall not apply with respect to any action (i) by merging in respect of a consolidated, combined, unitary or consolidating with, or by purchasing a substantial portion similar income tax group of which AEP Parent is the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof common parent or (ii) any assets in excess that would not reasonably be expected to have an adverse impact on Investor as compared to the other member(s) of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceCompany;
(d) (i) incur hire any indebtedness employee, officer or director or directly hire any individual service provider (which, for borrowed money the avoidance of doubt, shall not include any Company Service Provider that is employed or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities engaged by a third-party) of the Company, guarantee any debt securities of another individual Company or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make establish, enter into or adopt any loansplan, advances contract, program or capital contributions policy that would be a Benefit Plan sponsored, maintained or contributed to (or required to be contributed to) by the Company or any of its Subsidiaries; or
(ix) agree or commit to any of the foregoing.
(c) Notwithstanding the foregoing, AEP Holdco may cause or permit the Company during the Interim Period to take, and cause or permit the Company’s Subsidiaries to take, reasonable actions in accordance with Good Industry Practice, as reasonably necessary (i) in immediate and direct response to any Emergency Situations, and (ii) to undertake any Extraordinary Event Response; provided, that AEP Holdco shall, upon the occurrence of any of the circumstances described above, as promptly as reasonably practicable, inform Investor in writing of such occurrence and reasonably consult with Investor regarding such occurrence. No such actions under this Section 5.1(c) taken in compliance with the foregoing shall be deemed to violate or breach this Agreement in any way, or investments inserve as a basis for Investor to terminate this Agreement pursuant to Article VII or assert that any of the conditions to the Closing set forth in Article VI have not been satisfied.
(d) Notwithstanding the foregoing, the Company during the Interim Period may make, at its sole discretion, (i) subject to any applicable adjustments to the Purchase Price and Final Purchase Price for Distribution Amounts, cash dividends or cash distributions to AEP Holdco (including the Special Distribution in connection with the Closing) or (ii) payments or prepayments of principal or payments of interest under the AEP TransCo Note; provided, that on and after July 1, 2025 and prior to the Closing, any other individual or entity, except for (A) loans, advances or capital contributions (1) between such payments to AEP Holdco by the Company shall first be applied to principal and interest of the AEP TransCo Note until the AEP TransCo Note is repaid in full, prior to making any cash dividends or cash distributions to AEP Holdco. In the event the aggregate amount of cash dividends and cash distributions (excluding any Special Distribution) made by the Company to AEP Holdco in respect of its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances equity interest in the ordinary course Company on or after the Effective Date and prior to July 1, 2025 (or if earlier, the Closing), is in excess of business consistent with past practice;the aggregate distribution allowance amount set forth on Appendix I opposite the heading “Distribution Allowance Amount” (such excess, “Excess Distributions”), then, prior to the Closing, AEP Holdco shall make one or more offsetting cash contributions to the Company in an aggregate amount equal to the aggregate amount of such Excess Distributions (“Offset Contributions”).
(e) other than in connection with To the repair extent AEP Holdco requests consent from Investor pursuant to Section 5.1(a) or replacement Section 5.1(b) and Investor has not responded within five (5) Business Days of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status Investor receiving written notice of such plans under request, Investor shall be deemed to have consented to the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7relevant matter.
Appears in 1 contract
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement hereof to the earlier Closing, except as set forth in Section 5.1 of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as Seller Disclosure Schedule, or unless Purchaser shall otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors consent in writing (which approval consent shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company Seller shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions operate the Business in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory all material respects in the ordinary course of business consistent with past practicepractice and in accordance with all applicable Laws; (ii) use its commercially reasonable efforts to preserve substantially intact the Conveyed Assets and the Business and preserve the goodwill of the Business taken as a whole and the relationships of the Business with franchising authorities, customers, advertisers, suppliers and others having business relationships with the Business; and (iii) give Purchaser prompt written notice of any action, suit, proceeding or investigation that is instituted or threatened against Seller to restrain, prohibit or otherwise challenge the legality or propriety of any transaction contemplated by this Agreement, any change (or event which with the passage of time the giving of notice would result in any change) in the condition, financial or otherwise, of the Business, any event, condition or fact that would cause any of its representations or warranties in this Agreement to be untrue in any material respect (or with respect to those representations and warranties qualified by materiality, to be untrue, after consideration of such qualifier, in any respect) and of any facts, events, circumstances, actions or developments which become known to Seller that, individually or in the aggregate, would have a Material Adverse Effect; provided that no communication of any information pursuant to this Section 5.1 shall qualify or limit in any way any representations or warranties made by Seller or any obligations or liabilities for breach thereof.
(b) Without limiting the generality of Section 5.1(a), from the date of this Agreement to the Closing, except as set forth on Sections 3.10(c) and 5.1 of the Seller Disclosure Schedule or as expressly permitted by this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed), Seller shall not:
(i) subject the Conveyed Assets to any Lien, other than Permitted Liens;
(dii) (i) incur any indebtedness for borrowed money sell, transfer, lease, sublease, license or guarantee any such indebtedness dispose of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoingConveyed Assets, except for (A) borrowings the sale or disposal of inventory and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances obsolete equipment in the ordinary course of business or as permitted by Section 5.19;
(iii) permit the amendment, modification, termination, renewal, suspension, abrogation or cancellation of any Assumed Contract or fail to perform any material obligations under any Assumed Contract;
(iv) increase the compensation or benefits provided to any Transferred Employee, except for increases in the ordinary course of business and consistent with past practices;
(v) permit the amendment, modification, termination, renewal, suspension, abrogation or cancellation of any material License, except in accordance with Section 5.3 hereof;
(vi) enter into any Contract or commitment or incur any indebtedness or liability or obligation of any kind which would be binding on Purchaser after Closing and which: (A) could involve aggregate expenditure or receipt in excess of $10,000; (B) would have a term in excess of 12 months unless terminable without payment or penalty on not more than 30 days’ notice; (C) is not being entered into in the ordinary course and in accordance with past practice; (D) is not on arm’s-length terms; (E) is with an Affiliate of Seller; or (F) is otherwise material to the operation of the System or Business;
(vii) increase the number of employees of the Business;
(viii) voluntarily recognize any union as collective bargaining representative of any of the Employees or enter into a Contract or collective bargaining agreement governing the terms or condition of employment of or with any of the Employees or enter into any government Contracts giving rise to affirmative action obligations relating to any of the Employees;
(ix) add or delete any broadcast channels or programming services with respect to the Business except to the extent required under the Communications Act or any other Law or change the rate charged for any subscriber service with respect to the Business;
(x) engage in any marketing, subscriber installation, collection or disconnection practices outside the ordinary course or inconsistent with past practices with respect to the Business;
(xi) materially change its accounting practices or policies or its application thereof; and
(xii) agree, whether in writing or otherwise, to do any of the foregoing set forth in clauses (i) through (xi) above.
(c) Without limiting the generality of Section 5.1(a), from the date of this Agreement to the Closing, Seller shall:
(i) deliver to Purchaser true, correct and complete copies of monthly and quarterly financial statements (prepared on a basis consistent with the Financial Information) and operating reports for the operations of the Business, including subscriber reports, and any other management or operational reports with respect to the operations of the Systems prepared by or for Seller;
(ii) continue to pursue in the ordinary course of business, consistent with past practices, Ordinary Capital Expenditures and promptly notify Purchaser in writing of any extraordinary opportunity for material business development or System expansion;
(iii) maintain the Conveyed Assets and the System in good operating condition in a manner consistent with past practice (subject to ordinary wear and tear), including performing all reasonable maintenance when scheduled or otherwise appropriate;
(iv) continue to carry insurance with respect to the Business and the Conveyed Assets, insuring the same against loss or damage by fire and other risks, consistent with past practice;
(ev) other than in connection with the repair or replacement keep all of asset of the Company or its Subsidiaries books, records and files in the ordinary course of business in accordance with past practice, and pay, consistent with past practice, make or incur any capital expenditure involving all of its accounts payable and other debts, liabilities and obligations relating to the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing PeriodBusiness;
(fvi) make, change or rescind any material election relating continue to Taxes, settle or compromise any material Tax liability implement its procedures for an amount greater than the amount reserved for such liability disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the most recent Financial Statementsdate of this Agreement and consistent with past practice, and Seller will not itself, and will not permit any of its officers, directors, shareholders, partners, agents or amend employees to, pay or forgive any material Tax Returnof Seller’s subscriber accounts receivable prior to the Closing Date;
(gvii) adoptat Purchaser’s request, or enter into obtain a renewal of each Right of Entry Agreement that expires within 12 months of the Closing Date on terms and conditions satisfactory to Purchaser, and use commercially reasonable efforts to reduce any newRight of Entry Agreements that are designated as “oral agreements” on Section 3.19(b) of the Seller Disclosure Schedule to writing, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;in each case in form and substance reasonably acceptable to Purchaser; and
(1viii) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status Required Inventory, for (i) all equipment for the deployment and provisioning of such plans under cable modems, set top converter boxes and other customer premises equipment, at not less than normal historical levels consistent with Seller’s past practice and necessary to meet the Code operational requirements of the Business in the ordinary course of business consistent with past practicesfor not less than 45 days following Closing and (ii) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, for all other than in items necessary for the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews operation and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any maintenance of the actions set forth in System, as required based on past practices during the foregoing subsections (a) through (h) of this Section 4.7preceding 12-month period.
Appears in 1 contract
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to until the earlier Closing, except as specifically required by this Agreement or the Transactions or as set forth on Section 5.1 of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)Company Disclosure Schedule, the Company shall, and its Subsidiaries the Controlling Stockholder, for so long as he believes in good faith that such action would not constitute a breach of his fiduciary duties, shall use their respective commercially reasonable efforts to cause ECC and Emmis Operating Company to, (a) conduct their respective businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practicepractice and to use their reasonable best efforts to preserve intact their respective businesses and relationships with customers, regulators, suppliers, lessors, licensors, distributors, creditors, employees and agents, and (b) not, without the Investor’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned:
(a) amend, waive or otherwise change, in any material respect, the Initial Governing Documents, the Second Amended and Restated Articles of Incorporation of ECC (other than the Articles Amendments), the By-Laws of ECC, or such equivalent organizational documents of any of ECC’s subsidiaries;
(b) except for (i) the Securities Purchase and Rollover and (ii) as required by the Credit Agreement, capital stock or restricted stock units of ECC issued pursuant to the 401(k) Plan, the exercise of stock options, the vesting of restricted stock or pursuant to the terms of existing employment agreements or the director compensation plan, all as included in Section 3.8(a)(vi) and (vii), issue, sell, pledge, dispose, encumber or grant any shares of its or its subsidiaries’ capital stock or other ownership or voting interests, or any options, warrants, convertible securities, restricted stock or restricted stock units or other rights of any kind to acquire any shares of its or its subsidiaries’ capital stock or other ownership or voting interests;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions change to, or investments inpermit to lapse without filing for renewal, any other individual or entitymaterial Government Permits currently held, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) except as required by Law or pursuant to plans, agreements and other than arrangements in connection effect on February 28, 2010, (i) increase the compensation or other benefits payable or to become payable to directors or executive officers, (ii) grant any severance or termination pay to, or enter into any severance agreement with any director or executive officer of the repair Company, ECC or replacement any of asset their respective subsidiaries, except in the ordinary course of business consistent with past practice or (iii) enter into, amend in any material respect or terminate (without cause) any employment agreement with any executive officer of the Company or its Subsidiaries ECC (except for entering into or terminating employment agreements terminable on less than 30 days’ notice without penalty, and except for extension of employment agreements without material modification in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period);
(f) makeacquire, change including by merger, consolidation, any other form of business combination, acquisition of stock or rescind assets, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material election relating amount of assets in connection with acquisitions or investments with a purchase price in excess of $10 million individually or $20 million in the aggregate;
(g) incur, create, assume or otherwise become liable for any indebtedness for borrowed money (directly, contingently or otherwise) or guarantee any such indebtedness for any person except for indebtedness incurred or permitted by the Credit Agreement (excluding Sections 10.1(e), (f) and (k) thereof) and intercompany indebtedness;
(h) make any material change to Taxesits methods, policies or procedures of accounting in effect at February 28, 2010, except (i) as required by GAAP or as required by a Governmental Body, or (ii) as required by a change in applicable Law;
(i) adjust, split, combine, redeem, recapitalize or reclassify any of its capital stock or issue any other securities in respect of, in lieu of or in substitution for shares of its capital stock other than with respect to the vesting of restricted stock and restricted stock units;
(j) make any capital expenditures having an aggregate value in excess of $5 million;
(k) waive, release, assign, settle or compromise any material Tax liability for an amount greater claim, action or proceeding (other than waivers, releases, assignments, settlements or compromises that (i) involve the amount reserved for such liability on payment of monetary damages not in excess of $2 million in the most recent Financial Statementsaggregate not otherwise recoverable under insurance and (ii) do not otherwise materially restrict the conduct of the Business) or otherwise pay, discharge or amend satisfy any material Tax Returnclaims, liabilities or obligations in excess of $2 million not recoverable by insurance;
(gl) adoptadopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or enter into other reorganization or commence any new, or renew, or materially amend or supplement proceedings in bankruptcy (including with respect to any existing, Collective Bargaining Agreementsubsidiary of ECC);
(1m) other than as required or permitted by the Credit Agreement (excluding Sections 10.1(e), (f) and (k) and 10.2.1(xii) thereof), sell, lease, license, transfer, exchange or swap, mortgage or otherwise encumber (including securitizations), or subject to any lien or otherwise dispose of any material portion of its properties, assets or rights;
(n) enter into any newtransaction with an Affiliate of the Company, ECC or amend or terminate any subsidiary of ECC (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, existing arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesset forth on Schedule 5.1(n), amendments and replacements of those arrangements);
(3o) grant engage in any stock options activity which would pose a material risk that the Company may be treated, for U.S. federal income tax purposes, as engaged in a trade or stock awards or (4) make any annual or long-term incentive awardsbusiness; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7.
Appears in 1 contract
Samples: Securities Purchase Agreement (Emmis Communications Corp)
Conduct of the Business. Except From the date hereof until the Closing, except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) expressly permitted or required by this Agreement Agreement, the Ancillary Agreements or the Chapter 11 Plan as set forth on Schedule 5.1 or (y) otherwise requested or consented to in writing by Requisite Investors (such the Buyer, which consent shall not to be unreasonably withheldconditioned, delayed withheld or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement)delayed, the Company shall, and the Company and Prometheus shall cause the other Target Companies to, conduct the Business and operations of the Target Companies in all material respects in the usual and ordinary course of business consistent with past practice and in all material respects in compliance with all Legal Requirements and use its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in maintain the ordinary course in all material respects as conducted at the date of this Agreementassets and properties of, and (b) to keep intact, the extent consistent therewithbusiness of the Target Companies, use including using commercially reasonable efforts to (i) keep available the services of their current executive officersService Providers and preserving their and the Target Companies’ goodwill, reputation and (ii) preserve substantially intact the commercial business relationships with customers, suppliers, distributors vendors, licensors, licensees and others that are with whom they have material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreementdealings. Without limiting the generality of the foregoing, except prior to the earlier of the Closing or the termination of this Agreement in accordance with Article 7, without the prior written consent of Buyer (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not to be unreasonably withheld, conditioned or delayed), and except as otherwise contemplated by this Agreement, or (4) as set forth in on Schedule 4.7, during the Pre-Closing Period5.1, the Company shall not, and the Company and Prometheus shall not cause its Subsidiaries not or permit any other Target Company to:
(a) amend its Organizational Documents or take or authorize any action to wind up its affairs or dissolve;
(b) other than, in each case, (i) declarein the ordinary course of business consistent with past practice, set aside (ii) increases in compensation of $50,000 or pay less for any dividends onindividual or (iii) to the extent required under any Company Plan, collective bargaining agreement or other contractual arrangement or by applicable Legal Requirements, amend any Company Plan in any material respect or establish any new arrangement that would (if it were in effect on the date hereof) constitute a Company Plan or take any action to increase the rate of compensation of its employees or officers;
(c) 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 Common Stock or other Equity Interests of the Company, or any Equity Interests of any Subsidiary of the Company (other than in connection with the replacement of a physician owner of a Professional Corporation in accordance with the Material Company Contracts governing such relationship), or make any other distributions changes (by combination, reorganization or otherwise) in respect of, the capital structure of the Company or any of its capital stock Subsidiaries (other than dividends and distributions in respect any amendment to the certificate of the capital stock of any wholly-owned direct or indirect Subsidiary incorporation of the Company to the Company extent necessary to effect the Contemplated Transactions);
(d) sell, license, assign, transfer, pledge or another wholly-owned Subsidiary not in excess encumber, or grant any Encumbrances (other than a Permitted Encumbrance) on, any of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquireits Assets, except in connection the ordinary course of business consistent with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiespast practices;
(be) issue, deliver, grant, sell, pledge, dispose accelerate the payment of accounts payable or other liabilities or the receipt of accounts receivable or otherwise encumber make any of material change to its capital stock accounting policies or any securities convertible intopractices, except as required by GAAP or any rights, warrants or options to acquire, any such capital stock at less than fair market valueapplicable Legal Requirements;
(cf) acquire merge, combine or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by consolidate with any other mannerPerson;
(g) enter into, assume, materially amend or terminate any business Material Company Contract or any corporationagreement that would be a Material Company Contract, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory than in the ordinary course of business consistent with past practice;
(d) (ih) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entityIndebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Companythan trade accounts payable and short-term working capital financing, guarantee any debt securities of another individual or entityin each case, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances incurred in the ordinary course of business consistent with past practice;
(ei) make any capital expenditures or commitments for capital expenditures, other than in connection the ordinary course of business consistent with the repair past practice or replacement pursuant to a Contract in an amount of asset $500,000 or less;
(j) forgive, cancel or compromise any material debt or claim, or waive or release any right of the Company or its Subsidiaries material value, other than in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(fk) make, change fail to pay or rescind satisfy when due any material election relating to Taxes, liability of the Company or any of its Subsidiaries (other than any such liability that is being contested in good faith);
(l) settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial StatementsAction;
(m) except with respect to any Consolidated or Combined Return, make, revoke or amend any material Tax election, enter into any settlement in respect of Taxes, concede any claim or assessment in respect of Taxes or file any material amended Tax Return, if such action described in this Section 5.1(m) would reasonably be expected to affect materially and adversely any of the Target Companies after the Closing;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1n) enter into any newcollective bargaining agreement, memorandum of understanding, labor agreement, or other agreement with any union or other collective bargaining representative;
(o) terminate, cancel or amend any insurance policies which are not replaced by a comparable or terminate greater amount of insurance coverage;
(p) permit or allow any Target Company to file a petition for relief under any provisions of the United States Bankruptcy Code;
(q) purchase or acquire any business, purchase any Equity Interests or material assets of any Person (other than amendments required to maintain in connection with the tax qualified status replacement of a physician owner of a Professional Corporation in accordance with the Contracts governing such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesrelationship), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(ir) agree or otherwise commit to take do any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 1 contract
Samples: Stock Subscription Agreement (Providence Service Corp)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required contemplated by this Agreement or the Chapter 11 Plan or (y) consented to by Purchaser in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not towriting:
(a) The Company will (i) declareoperate and maintain the Business in the Ordinary Course of Business; (ii) maintain all Equipment and Improvements in accordance with past practice; and (iii) maintain normal quantities of retail and non-retail Inventories; provided, set aside however, that the Company may take the actions described on Schedule 5.2.
(b) The Company shall not (i) permit or allow any of the Company's assets to be subjected to any Lien (other than Permitted Liens or Permitted Real Estate Exceptions); (ii) sell, lease, transfer or otherwise dispose of any of the Company's assets, except in the Ordinary Course of Business; (iii) terminate, modify or amend materially any of the Contracts except in the Ordinary Course of Business; (vi) enter into any material contract, lease, registration, license or permit except in the Ordinary Course of Business; (v) change the Business' accounting methods, principles or practices (including without limitation, any change in depreciation or amortization methods, policies or rates or income recognition methods); (vi) increase or otherwise change the rate or nature of the compensation (including wages, salaries, bonuses and benefits under any Employee Benefit Plan) which is paid or payable to any officer, employee or other representative of the Business, except in the Ordinary Course of Business; (vii) make, or commit to make, any payment, contribution or award under or into any bonus, pension, profit-sharing, deferred compensation or similar plan, program or trust except in the Ordinary Course of Business; or (viii) make any other material change in the Business or the operation thereof.
(c) The Company shall use its commercially reasonable efforts to preserve and protect the Business' goodwill, rights, properties, assets and business, to keep available to it and Purchaser the services of the Business' employees, and to preserve and protect the Business' relationships with Authorities and its employees, officers, advertisers, suppliers, customers, creditors and others having business relationships with it.
(d) The Company shall not (i) declare or pay any dividends on, or make any other distributions in respect of, any of to its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period shareholders or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) new Affiliated Transactions other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions those set forth in the foregoing subsections (a) through (h) of this Section 4.7on Schedule 5.2.
Appears in 1 contract
Conduct of the Business. Except as otherwise (va) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during During the period from the date of this Agreement to the earlier of the Effective Date Closing and the date on which this Agreement is terminated in accordance with its terms Section 11.1 (the “Pre-Closing Interim Period”), except as contemplated or permitted under this Agreement, as required by Law, with the written consent of Parent, or as set forth on Schedule 5.1, the Company shall:
(i) use Commercially Reasonable Efforts to conduct the Business only in the Ordinary Course;
(ii) use Commercially Reasonable Efforts to preserve its business organizations and assets and maintain its rights and authorizations and its existing relations with regulators, customers, suppliers, licensors, licensees, employees, consultants and business associates;
(iii) make capital expenditures in accordance with its budget;
(iv) promptly notify Parent after any exercise of any Company Option;
(v) make all necessary income and other Tax Return filings;
(vi) maintain, to the extent within the control of the Company, the material assets of the Company in good operating condition (ordinary wear and tear excepted);
(vii) pay all maintenance and similar fees and take all appropriate actions necessary to prevent the abandonment, loss or impairment of all Registered Intellectual Property;
(viii) make all required regulatory filings in material compliance with applicable Law; and
(ix) promptly notify Parent of (A) any failure, in any material respect, of the Company to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it prior to the Closing; (B) 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 contemplated hereby; (C) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; (D) any material adverse change to the business, assets, liabilities, properties, condition (financial or otherwise), results of operations or earnings of the Company; (E) the commencement of any Action against the Company or the credible threat of any Action by any Person against the Company, or (F) any written notice or other written communication, including any written threat, filing, service or institution of any action brought by any Person, related to, and adverse to the consummation of, this Agreement or the other transactions contemplated hereby.
(b) During the Interim Period, except as contemplated or permitted under this Agreement, as required by Law, with the written consent of Parent, or as set forth on Schedule 5.1, the Company shall not:
(i) issue or grant any equity securities or any subscriptions, warrants, options or other agreements or rights of any kind whatsoever to purchase or otherwise receive or be issued any equity securities or any securities or obligations of any kind convertible into, or exercisable or exchangeable for, any equity securities of the Company or any of its Subsidiaries or accelerate the vesting of any such equity awards;
(ii) amend the Articles of Incorporation, Bylaws, Stockholders Agreement or other governing documents of the Company;
(iii) subject any of the properties or assets (whether tangible or intangible) of the Company to any Lien other than Permitted Liens;
(iv) sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company;
(v) enter into any Contract which, if entered into prior to the date hereof, would be required to be set forth on Schedule 3.14(a);
(vi) settle or compromise any Action or, other than in the Ordinary Course, commence any Action;
(vii) (A) incur any Indebtedness; (B) assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person; or (C) except for the forgiveness of the Company Promissory Notes pursuant to the Debt Forgiveness and Cancellation Agreements, substantially in the forms attached hereto as Exhibits K-1 and K-2 (the “Debt Cancellation Agreements”), cancel, release, assign or modify any amount of Indebtedness of any other Person;
(viii) amend or modify any standard form agreements except as otherwise expressly provided required to ensure compliance with any applicable Law;
(ix) take any action that would invalidate or permitted by cause the cancellation of any current insurance coverage or fail to maintain current insurance coverage or renewals thereof providing coverage substantially the same as any expiring policy;
(x) merge or consolidate the Company with any Person, or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company;
(xi) made any capital expenditure or capital commitment in excess of $100,000 in any individual case or $250,000 in the aggregate;
(xii) commence any proceeding or file any petition in any court relating to the bankruptcy, reorganization, insolvency, dissolution, liquidation or relief from debtors, in any case, in respect of the Company;
(xiii) terminate, cancel, surrender, suspend, modify or fail to renew any material license;
(xiv) (A) amend, modify, terminate, adopt or enter into any Employee Benefit Plan, except as required pursuant to the terms of this Agreement)the applicable plan or agreement or applicable Law, (B) increase or accelerate or commit to accelerate the funding, payment or vesting of the compensation or benefits provided under any Employee Benefit Plan or any other benefit or compensation plan, agreement, contract, program, policy or arrangement, (C) hire or otherwise enter into, renewed or allowed the renewal of or entering into, any employment or consulting agreement or arrangement with any current or employee or individual service provider to the Company and its Subsidiaries shall use their respective commercially reasonable efforts whose annual base compensation exceeds $100,000 or any severance agreement regardless of amount, or (D) terminate any employee, or individual service provider to the Company other than for cause, whose annual base compensation exceeds $100,000;
(axv) conduct their businesses implement or announce any employee layoffs, excluding, for the avoidance of doubt, terminations of employment in the ordinary course course;
(xvi) amend, modify, waive or terminate, in all each case, in any material respects respect, any material right under any existing Material Contract, except renewals of existing Material Contracts on terms that are, in the aggregate, at least as conducted at favorable to the Company as the terms thereof on the date of this Agreement;
(xvii) grant to any Person any Outbound License, and or assign or transfer to any Person any rights to any Intellectual Property;
(bxviii) to the extent consistent therewith, use commercially reasonable efforts fail to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends onannuity or any filing, prosecution, maintenance or make other fee or file any document, response to office action or other distributions filing in respect of, connection with any of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period Registered Intellectual Property when due or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesdiligently prosecute and maintain all Registered Intellectual Property;
(bxix) issue, deliver, grant, sell, pledge, dispose enter into any agreement for the creation or development by a third party (except for consultants or independent contractors engaged by Company in the Ordinary Course pursuant to a Contract containing a present assignment of Intellectual Property to Company) of any Intellectual Property or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valueCompany Products;
(cxx) acquire fail to take or agree maintain reasonable measures to acquire (i) by merging or consolidating with, or by purchasing a substantial portion protect the confidentiality and value of the stock, any Trade Secrets or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) nonpublic Intellectual Property included in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceCompany Intellectual Property;
(dxxi) terminate, amend, restate, supplement or waive any rights under any Intellectual Property Agreement;
(ixxii) incur make or change any indebtedness for borrowed money Tax election, adopt or guarantee change any such indebtedness of another individual accounting method, file any amendment to a federal, state, or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entityforeign income Tax Return, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance allocation agreement, deferred compensation arrangement or employment agreement with any officersTax sharing agreement, directors or employees, (2) grant any increases in employee compensationor, other than in the ordinary course or pursuant to promotionsOrdinary Course, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awardsa Tax indemnity agreement; or
(ixxiii) agree or otherwise commit to take do any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7foregoing.
Appears in 1 contract
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from From the date of this Agreement to hereof until the earlier of the Effective Date and the date on which termination of this Agreement is terminated in accordance with its terms (and the “Pre-Closing Period”) (Effective Time, except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officersas set forth on Schedule 6.01, and (ii) preserve substantially intact if the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors Parent shall have consented in writing (which approval consent shall not be unreasonably withheld, conditioned or delayed), or (4iii) as set forth in Schedule 4.7otherwise expressly contemplated by this Agreement (including the Restructuring and the Securities Purchase), during the Pre-Closing Period, (1) the Company shall not, conduct its business and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any the businesses of its capital stock other than dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice; provided, make that, notwithstanding the foregoing or incur clause (3) of this Section 6.01, the Company may use available cash to repay any capital expenditure involving Indebtedness or to pay cash dividends on or prior to the expenditure Reference Time, (2) the Company shall, and shall cause each of no more than one hundred thousand dollars its Subsidiaries to, use commercially reasonable efforts to ($100,000A) preserve substantially intact its business organization and to preserve in all material respects the present commercial relationships with Top Customers and Top Suppliers with whom any Group Company does business, (B) maintain the assets of each Group Company in good repair, order and condition in all material respects, ordinary wear and tear excepted and (C) maintain in full force and effect each Group Company’s insurance policies (with substantially the same levels of coverage), and (3) the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, unless otherwise required by Law:
(a) except for issuances as may result from the exercise of Options and issuances of Options pursuant to the Company Equity Plan set forth on Schedule 4.05(a) in accordance with their terms disclosed to the Parent in the ordinary course of business, issuances of replacement certificates for shares of Common Stock or shares of Preferred Stock, issuances of new certificates for shares of Common Stock or shares of Preferred Stock in connection with a transfer of shares of Common Stock or shares of Preferred Stock by the holder thereof, issue, sell or deliver any individual expenditure of its or two-hundred and fifty thousand dollars any of its Subsidiaries’ equity securities or issue or sell any securities convertible or exchangeable into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
($250,000b) effect any recapitalization, reclassification, equity split or like change in its capitalization;
(c) merge or consolidate with any Person or adopt a plan or agreement of complete or partial liquidation or dissolution, or form any Subsidiary, exit any line of business or enter into any new line of business;
(d) amend its Organizational Documents or any of its Subsidiaries’ Organizational Documents;
(e) make any redemption or purchase of its or any of its Subsidiaries’ equity interests (other than with respect to the repurchase of Restricted Shares contemplated by Section 1.04(a), the repurchase of Common Stock (including in connection with the exercise or satisfaction of tax withholding in connection with any Options set forth on Schedule 4.05(a) in accordance with their existing terms disclosed to the aggregate during Parent) from former employees of a Group Company, or the Pre-Closing Periodforfeiture of any Options, as required by the terms of existing agreements or any Company Plan, in each case, which are set forth on Schedule 4.05(a));
(f) makeacquire (by merger or otherwise), change sell, assign, transfer or rescind otherwise dispose of any material election relating to Taxestangible assets, settle except for the purchase or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, sale of goods or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code services in the ordinary course of business consistent with past practicespractice and except for sales of obsolete assets or assets with de minimis or no book value;
(g) sell, assign, transfer, encumber, or exclusively license any existingmaterial Owned Intellectual Property Right, Company Plans, arrangements except for the purchase or programs, severance agreement, deferred compensation arrangement sale of goods or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than services in the ordinary course of business, or permit to lapse, abandon, fail to prosecute, or fail to maintain any material Owned Intellectual Property Rights or fail to exercise a right of renewal or extension under or with respect to any material Owned Intellectual Property Right;
(h) enter into, waive any rights under, materially amend or voluntarily terminate any Company Material Contract or Real Property Lease other than as required by Law;
(i) make any capital expenditures or commitments therefor, except for such capital expenditures or commitments therefor that are reflected in the Company’s current budget provided to the Parent (provided, that the Company and each of its Subsidiaries shall be permitted to make capital expenditures in any amount that the Company determines is necessary in its reasonable judgment to maintain its ability to conduct its business in the ordinary course), or fail in any material respect to make any capital expenditure in the ordinary course of business in accordance with such budget;
(j) enter into any transaction with any Related Party except pursuant to promotionsthe terms of any agreement set forth on Schedule 4.22 and except (without limiting the restrictions set forth in Section 6.01(k)) for ordinary course compensation, expense reimbursement and provision of benefits to employees;
(k) except as required under the terms of any existing Company Plan provided to the Parent and set forth on Schedule 4.05(a) or by applicable Law: (i) grant any incentive awards, retention, change-in-control or severance benefits, in each case unless such incentive awards, retention, change-in-control or severance benefits (A) would be included in the definition of “Transaction Expenses” and (B) do not contain agreements, covenants or other obligations binding the Company or any of its Affiliates (including, from and after the Merger Closing, the Parent and its Affiliates), (ii) make any increase in the salaries, bonuses or other compensation and benefits under any Company Plan or otherwise payable by a Group Company to any current or former employees, independent contractors, officers or directors, other than general merit-based compensation increases in the ordinary course of business consistent with past practice practice, which such increases, in the aggregate, are less than a three percent (which shall include normal individual periodic performance reviews 3%) increase in compensation (and related compensation in no event more than ten percent (10%) for one individual); (iii) terminate or amend any Company Plan other than amendment to any Company Plan that does not materially increase the cost and benefit increases and bonus payments made in the ordinary course of business consistent with past practicespractice; (iv) adopt or enter into any plan, policy or arrangement for the current or future benefit of any officer or director of any Group Company that would be a Company Plan if it were in existence as of the date hereof or accelerate the time of payment, vesting or funding of any compensation or benefits under any Company Plan or otherwise; or (v) (x) hire any individual with annual compensation in excess of $200,000, (y) hire any individual with annual compensation less than $200,000 except in the ordinary course of business, or (z) terminate any Company Employee with annual compensation in excess of $200,000 (other than for “cause”);
(l) commence, settle or compromise any Action if the amount payable by or to any Group Company in connection therewith would exceed $250,000 or that would reasonably be expected to impose other obligations that restricts the conduct of any Group Company or any of the Company’s upstream Affiliates, including, from and after the Merger Closing, Parent and its Affiliates, in each case, in any material respect;
(m) make, rescind or change any material election in respect of Taxes or material accounting policies, practices or procedures of any Group Company, in each case unless required by Law or GAAP, take any action that would constitute a breach of Section 4.20(i) or effect any Tax Structure Change;
(n) change policies, practices and procedures with respect to working capital or cash management, accrual of revenue, collection or accrual of accounts receivable, payment or accrual of expenses, accounts payable or other Liabilities in a manner inconsistent with the past practice;
(o) (i) incur, replace, renew, amend, guarantee, extend or refinance any material Indebtedness (other than the accrual of interest under and borrowings under the revolving lines of credit under the Company’s existing credit facilities in the ordinary course of business and the incurrence of unsecured current obligations and liabilities in the ordinary course of business and that are not for borrowed money), or (3ii) grant any stock options Lien (other than Permitted Liens) upon any of its material assets or stock awards properties;
(p) implement any facility closings or employee layoffs requiring notice under the WARN Act or implement any collective dismissals outside of the U.S. that would require notice to a Governmental Entity or a collective consultation process;
(4q) make except as otherwise provided by Law, recognize or certify any annual labor union, labor organization, works council, or long-term incentive awardsgroup of employees of the Company or the Subsidiaries as the bargaining representative for any employees of the Company or the Subsidiaries; or
(ir) agree authorize, consent to or enter into any binding agreement or otherwise commit to take or refrain from taking (as applicable) any of the actions set forth foregoing actions. Nothing contained in this Agreement shall give the foregoing subsections Parent or the Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of the Company’s Subsidiaries’ operations prior to the Effective Time and the Group Companies’ failure to take any action prohibited by clauses (a) through (hr) of this Section 4.76.01 and not consented to by the Parent shall not be a breach of this Section 6.01 or any other obligation of the Company in this Agreement. The Company shall give Parent reasonable advance notice of any grant of incentive awards, retention, change-in-control or severance benefits pursuant to Section 6.01(k)(ii).
Appears in 1 contract
Samples: Transaction Agreement (Fortive Corp)
Conduct of the Business. Pending the Closing. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required expressly contemplated by this Agreement or with the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such prior written consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Effective Date and the date on Buyer, which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses in the ordinary course in all material respects as conducted at the date of this Agreement, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, the Company Seller shall not, and shall cause its Subsidiaries not the Company to:
(ai) conduct the business of the Company only in the ordinary course consistent with past practice;
(iii) not (A) declare, set aside aside, make or pay any dividends on, dividend or make any other distributions in respect of, any of its capital stock other than dividends and distributions distribution in respect of the capital stock of any whollythe Company (other than to distribute as a dividend or repayment of inter-owned direct or indirect Subsidiary company advances cash of the Company as of the Closing Date to the Company or another wholly-owned Subsidiary extent that the amount of such cash does not in excess of one hundred thousand dollars exceed ($100,000pound)1,008,000); (B) in the aggregate during the Pre-Closing Period or (ii) purchaserepurchase, redeem or otherwise acquireacquire any outstanding shares of the capital stock or other securities of, except in connection with or other proprietary or equity interests in, the Chapter 11 PlanCompany; (C) transfer, issue, sell or dispose of any shares of capital stock stock, or other proprietary or equity interests in, or other securities of the Company or any grant options, warrants, calls or other rights to directly or indirectly purchase or otherwise acquire shares of capital stock or other securities thereof or any rightsof, warrants or options to acquire any such shares or other securitiesproprietary or equity interests in, the Company;
(biii) issuenot issue or agree to issue any more shares or stock nor effect any recapitalization, deliverreclassification, grantdivision, sell, pledge, dispose consolidation or like change in the capitalization of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market valuethe Company;
(civ) not amend the Memorandum and Articles of Association of the Company;
(v) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management other than Xxxxx Xxxxxxxxx) and goodwill of the Company and (B) preserve its present relationship with Persons having business dealings with the Company;
(vi) maintain insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement (with insurers of substantially the same or better financial condition);
(A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply in all material respects with all contractual and other obligations applicable to the operations of the Company;
(viii) not, other than in the ordinary course of business consistent with past practice and without materially increasing the benefits or the costs thereof, (A) increase the compensation payable or to become payable by the Company to any of their respective directors, officers, employees, agents or representatives, (B) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or (C) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company, except as provided under Section 5.14;
(ix) except for trade payables incurred in the ordinary course of business consistent with past practice and for indebtedness for borrowed money incurred in the ordinary course of business from the existing revolving credit facility of the Company and consistent with past practice, not create, incur, acquire or assume or become subject to, or agree to acquire incur or become subject to, any debt, obligation or liability (icontingent or otherwise) by merging or consolidating with, or by purchasing a substantial portion on behalf of the stockCompany;
(x) not acquire any material properties or assets and not sell, assign, transfer, convey, lease or other ownership interests in, otherwise dispose of any of the material properties or substantial portion assets of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or the Company (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) except for fair consideration in the aggregate during ordinary course of business consistent with past practice);
(xi) not cancel or compromise any debt or claim or waive or release any material right of the Pre-Closing Period, Company except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(dxii) not enter into any commitment for capital expenditures of the Company in excess of $5,000 for any individual commitment and $25,000 for all commitments in the aggregate;
(ixiii) not enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any indebtedness for borrowed money or guarantee liability to any such indebtedness of another individual or entity, issue or sell labor organization with respect to the Company;
(xiv) not introduce any debt securities or warrants or other rights material change with respect to acquire any debt securities the operations of the Company, guarantee any debt securities of another individual or entity, ;
(xv) not permit the Company to enter into any "keep well" transaction or other agreement to maintain any financial statement condition of another Person make or enter into any arrangement having the economic effect Contract which by reason of any of the foregoingits size, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries subject matter or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances otherwise is not in the ordinary course of business consistent with past practice;
(exvi) other promptly notify the Buyer of (A) any Extraordinary Loss or Extraordinary Losses suffered by the Company, (B) any casualty losses or damages suffered by the Company with respect to property and assets having an individual replacement cost of more than in connection with the repair $10,000 or aggregate replacement cost of asset of more than $50,000 or which could cause a Material Adverse Change, whether or not such losses or damages are covered by insurance, and (C)(i) any Legal Proceeding commenced or threatened by or against the Company or its Subsidiaries in (ii) any Legal Proceeding commenced or threatened against the ordinary course of business consistent with past practice, make or incur any capital expenditure involving Seller relating to the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Periodtransactions contemplated by this Agreement;
(fxvii) makenot permit the Company to enter into or agree to enter into any merger or consolidation with, change any corporation or rescind other entity, and not engage in any material election relating to Taxesnew area of business or invest in, settle make a loan, advance or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statementscapital contribution to, or amend otherwise acquire the securities of any material Tax Returnother Person;
(gxviii) adoptnot permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any newContract with, the Seller or renew, or materially amend or supplement any existing, Collective Bargaining Agreementof its Affiliates (other than the Company);
(1xix) promptly and accurately record in the appropriate records and books of account and minute books of the Company, all material corporate action taken on or after the date hereof by the Company or the Board of Directors (including committees thereof) of the Company and promptly following such recordation deliver true, correct and complete copies thereof to the Buyer;
(xx) unless the Buyer has given written notice to the Company that it is abandoning the transactions contemplated by this Agreement, not permit any of their respective directors, officers, employees, Affiliates, representatives or agents to, directly or indirectly, (A) discuss, negotiate, undertake, authorize, recommend, propose or enter into any newtransaction involving a merger, consolidation, business combination, purchase or disposition of any amount of the assets, or amend capital stock or terminate (securities of, or other proprietary or equity interest in, the Company other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employeestransactions contemplated by this Agreement (an "Acquisition Transaction"), (2B) grant facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction, (C) furnish or cause to be furnished, to any increases in employee compensationPerson any information, other than any information furnished prior to April 25, 1997, the date of the letter of intent among the Seller and the Buyer, concerning the business, operations, properties or assets of the Company in the ordinary course or pursuant to promotionsconnection with an Acquisition Transaction, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4D) make otherwise cooperate in any annual way with, or long-term incentive awards; or
(i) agree assist or otherwise commit participate in, facilitate or encourage, any effort or attempt by any other Person to take do or seek any of the actions set forth in the foregoing subsections foregoing; and
(axxi) through (h) of not agree to do anything prohibited by this Section 4.75.2 or anything which would make any of the representations and warranties of the Seller in this Agreement or the Seller Documents untrue or incorrect in any material respect.
Appears in 1 contract
Conduct of the Business. Except as Unless otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to by Buyer in writing by Requisite Investors writing, Sellers will cause the Company (such consent not which, for purposes of this Section 5.1, shall mean the Company and the Subsidiaries taken as a whole) to be unreasonably withheld, delayed or conditioned), during observe the period following provisions from the date of this Agreement to and including the earlier of the Effective Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries shall use their respective commercially reasonable efforts to Date:
(a) The Company will conduct their businesses in the ordinary course its business in all material respects as conducted at in the date Ordinary Course of this Agreement, Business and in accordance with applicable Law;
(b) to the extent consistent therewith, The Company will (i) use commercially reasonable efforts to (i) preserve its business organization and goodwill, keep available the services of their current executive its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, and (ii) preserve substantially intact confer on a regular and frequent basis with representatives of Buyer to report operational matters and the commercial relationships general status of ongoing operations as requested by Buyer;
(c) The Company will not materially change any of its methods of accounting in effect on the date of the Latest Balance Sheets, other than changes required by GAAP;
(d) The Company will provide Buyer with customers, suppliers, distributors and others that are material its monthly controller's reports promptly following the distribution of each such report to the Company's management;
(e) The Company will not cancel or terminate its Subsidiariescurrent insurance policies or allow any of the coverage thereunder to lapse, consistent unless simultaneously with past practice as conducted such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(f) The Company will file (or cause to be filed) at its own expense, on or prior to the due date, all Returns for all Tax periods ending on or before the Closing Date where the due date of this Agreement. Without limiting the generality for such Returns (taking into account valid extensions of the foregoingrespective due dates) falls on or before the Closing Date, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by prepared on a basis consistent with the Requisite Investors in writing (which approval shall not be unreasonably withheld, conditioned or delayed), or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, Returns of the Company shall notprepared for prior Tax periods, and shall cause its Subsidiaries will provide Buyer with copies of each income Tax Return or election of the Company at least ten (10) days before filing such Return or election; provided, however, that the Company will not to:file any Return, election, claim for refund or information statement or consent to any adjustment or otherwise compromise or settle any matters with respect to Taxes to which Buyer reasonably objects;
(ag) The Company will not (i) make or rescind any express or deemed election or take any other discretionary position relating to Taxes, (ii) amend any Return, (iii) settle or compromise any Litigation relating to Taxes or (iv) change any of its methods of reporting income or deductions for income Tax purposes from those employed in the preparation of the last filed income Tax Returns unless there is a change in applicable Laws;
(h) The Company will not declare, set aside or pay any dividends on, dividend or make any other distributions in distribution with respect of, any of to its capital stock or equity interests, whether in cash or in kind (other than routine interim or annual dividends and distributions in respect of the capital stock of any wholly-owned direct or indirect Subsidiary to all shareholders of the Company consistent with past practices and dividends or distributions from a Subsidiary to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;Subsidiary); and
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging The Company will not loan any funds, pay any money or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) transfer any assets in excess of five hundred thousand dollars to any affiliate ($500,000) in any individual transaction or one million dollars ($1,000,000) in other than among the aggregate during Company and the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoingSubsidiaries), except for (Ai) borrowings and increases in letters payments of credit dividends or distributions permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or Section 5.1(h), (ii) make any loanspayments to affiliates for goods or services purchased or obtained in the Ordinary Course of Business in arms' length transactions, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2iii) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments payments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesContracts listed on SCHEDULE 5.1(I), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7.
Appears in 1 contract
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier Shareholders will cause each of the Effective Date Company and the date on which this Agreement is terminated Subsidiaries to observe the following provisions to and including the Closing Date:
(a) Each of the Company and the Subsidiaries will conduct its business only in, and neither the Company nor any Subsidiary will take any action except in, the Ordinary Course of Business and in accordance with its terms (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of applicable Law and, to this Agreement)end, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (a) conduct their businesses will not, on a per project basis, incur Capital Expenditures in the ordinary course in all material respects as conducted at the date excess of this Agreement$200,000 without prior approval from Buyer, and (b) to the extent consistent therewith, use commercially reasonable efforts to (i) keep available the services of their current executive officers, and (ii) preserve substantially intact the commercial relationships with customers, suppliers, distributors and others that are material to the Company or its Subsidiaries, consistent with past practice as conducted prior to the date of this Agreement. Without limiting the generality of the foregoing, except (1) as otherwise expressly required or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing (which such approval shall not be unreasonably withheld, conditioned or delayed)delayed other than Capital Expenditures included in the Company’s development plan, disclosed to Buyer prior to the execution of this Agreement or (4) as set forth in Schedule 4.7, during the Pre-Closing Period, which the Company shall not, or a Subsidiary is required to incur under existing Contracts and shall cause its Subsidiaries not to:other than those projects listed on Schedule 6.1(a).
(ab) Neither the Company nor any Subsidiary will amend or modify any Material Contract or enter into any Contract that would have been a Material Contract if such Contract had been in effect on the date of this Agreement except that the Company may enter into Contracts in the Ordinary Course of Business;
(c) Each of the Company and the Subsidiaries will (i) declareuse reasonable efforts to preserve its business organization and goodwill, set aside or pay keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii) confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations as requested by Buyer and (iii) not take any dividends onaction that would render, or make which reasonably may be expected to render, any other distributions representation or warranty made by it in respect ofthis Agreement untrue at the Closing, including any actions referred to in Section 4.8;
(d) The Company will not change any of its capital stock methods of accounting in effect on the date of the Latest Balance Sheet, other than dividends and distributions in respect changes required by GAAP;
(e) Neither the Company nor any Subsidiary will cancel or terminate its current insurance policies or allow any of the capital stock of any wholly-owned direct coverage thereunder to lapse, unless simultaneously with such termination, cancellation or indirect Subsidiary lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(f) Each of the Company and the Subsidiaries will file (or cause to be filed) at its own expense, on or prior to the Company due date, all Returns for all Tax periods ending on or another wholly-owned Subsidiary not in excess before the Closing Date where the due date for such Returns (taking into account valid extensions of one hundred thousand dollars ($100,000the respective due dates) in falls on or before the aggregate during the Pre-Closing Period or (ii) purchaseDate, redeem or otherwise acquire, except in connection prepared on a basis consistent with the Chapter 11 PlanReturns of the Company and the Subsidiaries prepared for prior Tax periods, any shares and will provide Buyer with a copy of capital stock appropriate workpapers, schedules, drafts and final copies of each federal and state income Tax Return or election of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between the Company and its Subsidiaries and (2) between such Subsidiaries and (B) customary immaterial advances in the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax ReturnSubsidiary;
(g) adopt, or enter into Neither the Company nor any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
Subsidiary will (i) agree make or otherwise commit to rescind any express or deemed election or take any other discretionary position relating to Taxes, (ii) amend any Return, (iii) settle or compromise any Litigation relating to Taxes or (iv) change any of its methods of reporting income or deductions for federal or state income Tax purposes from those employed in the preparation of the actions set forth in the foregoing subsections (a) through last filed federal or state income Tax Returns; and
(h) At the Closing, the Merger Consideration shall be reduced by up to $148,600, reflecting the Shareholders’ agreed share of the aggregate maximum amount of $198,600 of severance costs to be paid to employees of the Company or a Subsidiary that are terminated as a result of the Closing of this Section 4.7Agreement. This shall be the full extent of the Parties’ obligation for severance costs. To the extent the total employee severance costs are less than $198,600, the Merger Consideration shall be reduced by the actual severance cost less $50,000.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Patina Oil & Gas Corp)
Conduct of the Business. Except as otherwise (v) required by law, (w) disclosed in the Disclosure Statement, (x) required by this Agreement or the Chapter 11 Plan or (y) consented to in writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement Prior to the earlier of the Effective Closing Date and the date on which termination of this Agreement is terminated in accordance with its terms pursuant to Section 5.1 (the “Pre-Closing Period”) (except as otherwise expressly provided or permitted by the terms of this Agreement), the Company and its Subsidiaries the Company Bank shall, and shall use their respective commercially reasonable efforts to cause each other Company Subsidiary to, (ai) conduct their businesses its business in the ordinary course in all material respects as conducted at the date of this Agreementconsistent with past practice, and (bii) to the extent consistent therewith, use commercially reasonable best efforts to (i) preserve intact its current business organizations and its rights and permits issued by Governmental Entities, keep available the services of their its current executive officers, officers and (ii) key employees and preserve substantially intact the commercial its relationships with customers, suppliers, distributors Governmental Entities and others that are material having business dealings with it to the Company end that its goodwill and ongoing businesses shall be unimpaired, (iii) not take any action that would reasonably be expected to materially adversely affect or its Subsidiaries, consistent with past practice as conducted prior materially delay the receipt of any approvals of any Governmental Entity required to consummate the date of this Agreement. Without limiting transactions contemplated hereby or by the generality other Transaction Documents or materially adversely affect or materially delay the consummation of the foregoing, except (1) as otherwise expressly required transactions contemplated hereby or permitted by this Agreement, (2) as required by law, (3) for actions approved by the Requisite Investors in writing other Transaction Documents, and (which approval shall iv) not be unreasonably withheldforgive any loans to directors, conditioned or delayed)officers, or employees of the Company, the Company Bank or any of the other Company Subsidiaries (4) as set forth or any of such person’s immediate family members or Affiliates or any Affiliates of such person’s immediate family members); provided, that nothing in Schedule 4.7this Section 3.4 shall limit or require any actions that the Board of Directors may, during in good faith and upon the advice of legal counsel, determine to be inconsistent with the Company’s obligations under applicable law or imposed by any Governmental Entity. During the Pre-Closing Period, the Company and the Company Bank shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any provide to the Investor copies of its capital stock other than dividends and distributions in respect of all materials provided to the capital stock members of any wholly-owned direct loan review or indirect Subsidiary of the Company to the Company or another wholly-owned Subsidiary not in excess of one hundred thousand dollars ($100,000) in the aggregate during the Pre-Closing Period or (ii) purchase, redeem or otherwise acquire, except in connection with the Chapter 11 Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets in excess of five hundred thousand dollars ($500,000) in any individual transaction or one million dollars ($1,000,000) in the aggregate during the Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another individual or entity, issue or sell any debt securities or warrants or other rights to acquire any debt securities similar committee of the Company, guarantee any debt securities of another individual or entity, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly owned Subsidiaries Bank or between such Subsidiaries or (ii) make any loans, advances or capital contributions to, or investments in, any other individual or entity, except for (A) loans, advances or capital contributions (1) between Company Subsidiary at the Company and its Subsidiaries and (2) between same time such Subsidiaries and (B) customary immaterial advances in materials are provided to the ordinary course of business consistent with past practice;
(e) other than in connection with the repair or replacement of asset of the Company or its Subsidiaries in the ordinary course of business consistent with past practice, make or incur any capital expenditure involving the expenditure of no more than one hundred thousand dollars ($100,000) in any individual expenditure or two-hundred and fifty thousand dollars ($250,000) in the aggregate during the Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, settle or compromise any material Tax liability for an amount greater than the amount reserved for such liability on the most recent Financial Statements, or amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing, Collective Bargaining Agreement;
(1) enter into any new, or amend or terminate (other than amendments required to maintain the tax qualified status members of such plans under the Code in the ordinary course of business consistent with past practices) any existing, Company Plans, arrangements or programs, severance agreement, deferred compensation arrangement or employment agreement with any officers, directors or employees, (2) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices), (3) grant any stock options or stock awards or (4) make any annual or long-term incentive awards; or
(i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h) of this Section 4.7committee.
Appears in 1 contract
Samples: Securities Purchase Agreement (First Mariner Bancorp)
