Conduct of the Business. (a) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees. (b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoing.
Appears in 4 contracts
Samples: Merger Agreement (ONE Group Hospitality, Inc.), Merger Agreement (ONE Group Hospitality, Inc.), Merger Agreement (ONE Group Hospitality, Inc.)
Conduct of the Business. Except as (ai) From otherwise contemplated hereby, (ii) required by applicable Law, (iii) set forth on Schedule 6.3 or (iv) consented to by Buyer in writing (which consent may not be unreasonably withheld, delayed or conditioned), Seller will use its commercially reasonable efforts to keep the Business and the Transferred Assets and Assumed Liabilities as presently conducted intact in all material respects, including using commercially reasonable efforts to (A) maintain its present operations, physical facilities, working conditions and relationships with suppliers, distributors, customers and employees (in each case on terms that are at least as favorable to the Business or Seller, as the case may be, as the terms of the Contracts between Seller and such suppliers, distributors, customers and employees as in effect as of the date hereof until hereof), (B) preserve and maintain the Closing DateTransferred Assets (subject to normal wear and tear), or (C) preserve the earlier termination goodwill of this Agreement pursuant to Article IXthe Business, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement(D) preserve any and all Permits, the Company shall: (iE) conduct the Business only in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business and in compliance with any all applicable Laws), unless and (F) prevent any development or changes which, individually or in the Parent shall aggregate, would reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, Seller agrees that, during the period from the date of this Agreement until the Closing, except as (i) otherwise contemplated by this Agreement, (ii) required by applicable Law, (iii) set forth on Schedule 6.3, or (iv) consented to by Buyer in writing (which consent will may not be unreasonably withheld, conditioned delayed or delayedconditioned); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.Seller shall not:
(ba) From the date hereof until the Closing Dateterminate, amend, modify, replace or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible enter into, or options waive any rights with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combinationAssigned Contract, other than in the ordinary course of business consistent with past practice; business;
(viib) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted except in the ordinary course of business, sell, lease, assign, license, abandon, permit to lapse, transfer or otherwise dispose of any of the Transferred Assets, other than pursuant to Contracts existing as of the date of this Agreement that have been disclosed to Buyer;
(c) create, incur or permit to exist any Encumbrances on the Transferred Assets except for Permitted Encumbrances and Encumbrances that will be removed at or prior to the Closing;
(d) acquire (whether by merger or consolidation or purchase of equity or assets or otherwise) any business consistent with past practice or assets of any Person outside of the ordinary course of business that would be Transferred Assets or Assumed Liabilities;
(e) make any commitments in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability capital expenditures that would constitute Assumed Liabilities outside of the Company that is ordinary course of business;
(f) except with respect to immaterial increases made in the ordinary course of business to non-officer Employees, increase the compensation or benefits of any Employee;
(g) make any changes to their accounting principles or practices, other than as required by applicable Law or GAAP;
(h) make, change or revoke any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes, in each case to the extent such action would affect any Purchased Asset, Assumed Liability or the Business after the Closing; and
(i) fail to replenish Business inventories and supplies in a normal and customary manner consistent with past its prior practice, or make any purchase commitment in excess of the normal, ordinary and usual requirements of its business or at any price in excess of the then current market price or upon terms and conditions more onerous than those usual and customary in the industry, or make any change in its selling, pricing, advertising or personnel practices inconsistent with its prior practice;
(j) institute, settle or incuragree to settle any Action before any Governmental Authority relating to the Business, assume the Transferred Assets or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, the Assumed Liabilities other than in the ordinary course of business consistent with past practice, (but not in any case involving amounts in excess of $10,000) or waiving, cancelling that would otherwise impose obligations on the part of Buyer after the Closing (other than customary confidentiality requirements);
(i) enter into any transaction or assigning any claims or rights of substantial value Contract other than in the ordinary course of business consistent with past practice; or (xiiiii) making breach or violate any capital expenditures that are Contract or default under any Contract;
(l) make any material changes in policies or practices relating to selling practices, returns, discounts or other terms of sale or accounting therefor or in policies of employment;
(m) make any prepayment of any accounts payable, delay payment of any trade payables or other obligations other than in the aggregate in excess ordinary course of $100,000 (business, or make any other cash payments other than capital expenditures contemplated by in the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required ordinary course of business;
(n) fail to maintain all of the tangible Transferred Assets and all other tangible properties and assets owned, leased, occupied, operated or used in connection with the Business in compliance with any applicable Laws)good repair, working order and operating condition subject only to ordinary wear and tear; or
(xivo) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving agree or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing commit to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or actions prohibited by the foregoing clauses (xixa) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingthrough (n) above.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Grilled Cheese Truck, Inc.), Asset Purchase Agreement (Grilled Cheese Truck, Inc.), Asset Purchase Agreement (Grilled Cheese Truck, Inc.)
Conduct of the Business. (a) From the date hereof until the Closing Date, or of this Agreement through the earlier of the termination of this Agreement pursuant to Article IX, except to Section 11.1 or the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, Closing Date (the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws“Pre-Closing Period”), unless the Parent shall have or as Buyer may otherwise consented approve in writing (which consent approval will not be unreasonably withheld, conditioned or delayed); ) or as otherwise expressly permitted or required by this Agreement, Seller will (ii1) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use conduct its commercially reasonable efforts to preserve the present relationships of the Business business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant respect to the terms thereof between the date of this Agreement Purchased Assets and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees Assumed Liabilities in the ordinary course of business consistent with past practice and Ordinary Course, (vi2) use commercially reasonable efforts to preserve intact its such business organizationwith respect to the Purchased Assets and the Assumed Liabilities, value as a going concern and preserve the goodwill and preserve the existing relationships (contractual or otherwise) with third parties (including lessorscustomers, suppliers, licensors, suppliers, distributors and customersothers having business relationships with the business with respect to the Purchased Assets and the Assumed Liabilities, (3) comply in all material respects with all applicable Laws; and employees.
(b4) From maintain all existing material Assigned Permits. Without in any way limiting any of the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IXforegoing, except to (w) as otherwise expressly contemplated by the extent described in Schedule 5.01 or Transaction Documents, (x) as set forth on Section 5.1(a) of the Disclosure Schedule, (y) as Buyer may otherwise required or specifically permitted by this Agreement or consented to approve in writing by the Parent (which consent approval will not be unreasonably withheld, conditioned or delayed)) or (z) as otherwise expressly contemplated or required by this Agreement, the Company shall refrain from: with respect to any Purchased Asset or Assumed Liability, Seller will not:
(i) issuing, selling change its fiscal year or delivering make any change in any method of its Company LLC Interests accounting or accounting practice or policy other Equity Interests than as required by GAAP or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); applicable Law;
(ii) effecting sell, assign, license, transfer, hypothecate, convey, lease or otherwise dispose of any recapitalizationOwned Real Property or any other material Purchased Asset, reclassificationexcept (A) pursuant to a Home Sale Contract, dividend(B) disposition of obsolete equipment or (C) sales of houses, split land, building materials or like change in its capitalization other than dividends assets or property in the Ordinary Course, provided that Seller shall keep Buyer reasonably informed of any pending sales of parcels of the Owned Real Property (excluding sales of single family housing units in the ordinary course Ordinary Course) and provide copies of business consistent with past practice and the terms and conditions all letters of the Company’s Organizational Documents; intent, purchase agreements or other material correspondence or agreements relating to such sales;
(iii) amending its Organizational Documents; create or assume any mortgage or pledge, or impose any material Lien on, any material Purchased Asset, except (A) for Permitted Liens, (B) as required by applicable Law or (C) pursuant to any Assigned Contracts, including Home Sale Contracts and Contracts for the sale of land, building materials or other asset or property, entered into in the Ordinary Course;
(iv) making extend, materially amend, terminate or grant any redemption relinquishment or purchase release of any of its of its Company LLC Interests or other Equity Interests; right under any Assigned Contract (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course Ordinary Course or terminations of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in Assigned Contracts occurring due to the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer expiration of the Companyterm thereof);
(v) make, change or revoke any material Tax election; (x) increasing settle or compromise any benefits under any Employee Benefit Plan claim, notice, audit report or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice assessment in respect of the compensation material Taxes; adopt or change any method of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan)Tax accounting; (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing file any amended material Tax Return; electing or changing surrender any method of accounting for right to claim a material Tax purposes; settling any Action or claim in respect of Taxesrefund; or consenting consent to any extension or waiver of the statute of limitations period for applicable to any material Tax claim or assessment; in each case if the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or action would reasonably be expected to be material to have an adverse effect on Buyer or any Purchased Asset in a Tax period (or portion thereof) beginning after the Company Closing Date; and
(vi) agree or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoingactions set forth in clauses (i) through (iv) above.
Appears in 3 contracts
Samples: Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes)
Conduct of the Business. (a) From 5.1.1 During the period from the date hereof until up to the Closing DateClosing, or the earlier termination of except as otherwise contemplated by this Agreement pursuant to Article IXor as the Purchaser otherwise agrees in writing in advance (which consent shall not be unreasonably withheld or delayed), except the Seller shall, and to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreementapplicable shall cause the other members of the Seller’s Group to, the Company shall: (i) conduct the Business in the ordinary course Ordinary Course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) and use its commercially reasonable efforts to preserve the present relationships of intact and protect the Business and its relationship with customers, suppliers, vendors, licensees creditors and other Persons others having dealings with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof it and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or keep available to cause Spoonful to keep, available the Purchaser the services of the Business Employees subject to the normal hiring and firing of Business Employees involved in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesbusiness.
(b) From 5.1.2 During the period from the date hereof until up to the Closing Date, or the earlier termination of this Agreement pursuant to Article IXClosing, except to the extent described in Schedule 5.01 or as otherwise required or specifically permitted contemplated by this Agreement or consented to as the Purchaser shall otherwise consent in writing by the Parent in advance (which consent will shall not be unreasonably withheld, conditioned withheld or delayed), the Company Seller shall refrain from: not take any of the following actions with respect to the Business and, to the extent applicable, shall cause the other members of the Seller’s Group not to:
(a) amend or otherwise change any articles of association, by-laws, certificates of incorporation or similar corporate governing documents of the Group Entities;
(b) reclassify, split (splitsing van aandelen, samenvoeging van verschillende xxxxxxx van aandelen), repay, recapitalize (omzetting reserves in aandelenkapitaal), redeem, adjust the par value of, pay out stock dividend or repurchase, or allow to be reclassified, split, repaid, redeemed or repurchased any shares or other ownership interests of the Group Entities;
(c) create, allot, issue, dispose of, pledge or otherwise encumber, or allow to be created, allotted, issued, disposed of, pledged or otherwise encumbered any shares, ownership interests or voting securities, or any warrants, convertible securities, other rights of any kind to acquire or receive any shares, any other ownership interests or any voting securities of the Group Entities, or issue any instruments that give rise to the right of the holder to obtain shares, ownership interests or voting securities in the Group Entities, except as required by the NXP Financing Arrangements;
(d) declare, set aside, make or pay any dividend in kind or otherwise or make any equity distribution in kind or otherwise to shareholders of the Group Entities;
(e) incur any additional indebtedness, or issue any debt securities or assume, guarantee or endorse any material obligations of any other Person, except in the Ordinary Course of Business and except as required by the NXP Financing Arrangements;
(f) make any (i) issuingcapital expenditures which exceed, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible intoon a quarterly basis, USD 500,000 (five hundred thousand United States dollars), or options with respect (ii) material loans or capital contributions to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (other than the Group Entities), in each case except in the case Ordinary Course of loans Business;
(g) acquire (by merger, consolidation or advances acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein;
(h) sell, assign, lease, transfer, license, or otherwise dispose of, or extend or exercise any option to employeessell, in excess assign, lease, transfer, license, or otherwise dispose of, any assets of $100,000 the Group Entities, except in the aggregate for all such loans and advances); Ordinary Course of Business, provided that no Relevant IP-Rights are affected;
(viiii) pledging mortgage or otherwise encumbering pledge any assets of its Company LLC Interests or other Equity Interests; (ix) excepting the Group Entities except as required by the NXP Financing Arrangements;
(j) terminate or specifically permitted by this Agreementmaterially extend or materially modify any Material Contract;
(k) enter into any contract, arrangement or commitment or amend any contract, arrangement or commitment, other than in the Ordinary Course of Business;
(l) materially increase, amend or grant any employee benefits in any manner, except in the Ordinary Course of Business, including (i) adopting, entering into or amending any Contract with bonus, profit sharing, compensation, stock option, warrant pension, retirement, deferred compensation, employment, severance, termination or other employee benefit plan, agreement or arrangement for the Manager benefit or welfare of any officer of the Company; officer, director or employee or (xii) increasing agree to any benefits under any Employee Benefit Plan or increasing increase in the compensation payable or paid, whether conditionally or otherwise, to become payable to any employee, officer, manager director of employee;
(m) settle any legal proceedings or consultant of Company other disputes (other than (Ai) any increase adopted that would result in the ordinary course Seller, or to the extent applicable the Group, being enjoined in any respect material to the Transaction or the Business or (ii) for an amount, in the aggregate, exceeding USD 250,000 (two hundred and fifty thousand United States dollars);
(n) accelerate the delivery or sale of business consistent with past practice products or the incurrence of capital expenditures, or offer discounts on sale of products or premiums on purchase of raw materials, except in respect the Ordinary Course of Business;
(o) increase the headcount of any of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, Group Entities other than in the ordinary course Ordinary Course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; Business;
(xiiip) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result cause any Seller’s Warranty not to be true and accurate as at Closing;
(q) save for a change as per 1 January 2011 in any respect of the representations and warranties set forth depreciation period for new high volume automation assets, make any change in the Accounting Principles Consistently Applied;
(r) change any Tax accounting method of, or make any Tax election (except as permitted by this Agreement becoming false Agreement) for, or inaccurate in settle or compromise any material respectTax liability of, any Group Entity; or
(s) authorize or (xix) authorizing, agreeing enter into any agreement or committing or entering into a Contract commitment with respect to do any of the foregoing.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (NXP Semiconductors N.V.), Sale and Purchase Agreement (NXP Semiconductors N.V.), Sale and Purchase Agreement (Dover Corp)
Conduct of the Business. (a) From Seller agrees that during the period from the date hereof until of this Agreement to the Closing Date, except (i) as otherwise contemplated by this Agreement or the earlier termination of this Agreement pursuant to Article IXtransactions contemplated hereby, except to the extent described (ii) for those matters set forth in Schedule 5.01 5.1 of the Disclosure Schedules, or otherwise required (iii) as consented to by Buyer or specifically permitted by this AgreementParent, it shall, and shall cause the Company shall: Seller Subsidiaries to:
(ia) conduct the Business in the ordinary course of business and, to the extent consistent with past practice in all material respects (including with respect to capital expenditurestherewith, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve intact the present relationships of the Business with suppliersAssets, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, keep available the services of the Business Employees subject and preserve relationships with those persons having business dealings with the Business as of the date hereof; and
(b) not, with respect to the normal hiring and firing Business,
(i) sell, assign, sublease, license, transfer, convey or otherwise dispose of Business Employees any of the assets primarily related to the Business, except in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.business;
(bii) From the date hereof until the Closing Dateterminate, modify, transfer or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of amend any of the foregoing); (ii) effecting any recapitalizationContracts, reclassification, dividend, split or like change in its capitalization other than dividends in the except in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; business;
(iii) amending its Organizational Documents; to the extent it is primarily related to the Business, purchase any business;
(iv) making enter into any redemption new agreement related solely to the Business other than renewals of existing agreements or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies otherwise in the ordinary course of business consistent with past practice; ;
(viv) permitting Except to the extent specifically provided in Schedule 3.6(a)(v) of the Disclosure Schedule, increase in any manner the compensation of any of the assets of Business Employees, except for such increases to Business Employees whether in the Company to become subject to a Lien United States or otherwise (other than a Permitted Lienmembers of senior management) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent (including annual reviews) or in accordance with past practice; the terms of any employment contract or collective bargaining agreement as currently in effect (other than incentives to sales persons in the ordinary course);
(vi) adopt, grant, extend or increase the rate or terms of any bonus (other than incentives to sales persons in the ordinary course), insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any of the Business Employees, except increases required by any applicable law, rule or regulation;
(vii) making make any loans or advances tochange in any of the Business' present accounting methods and practices, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); except as required by GAAP;
(viii) pledging license (other than in connection with the sale of products by virtue of such sale) any of the Transferred Intellectual Property to any third party or license any of the Licensed Intellectual Property or Licensed Trademarks to any third party for use in the Business, except to the extent it otherwise encumbering would have been permitted under the terms of its Company LLC Interests or other Equity Interests; the license agreements referred to in Section 5.14 had such agreement been in effect;
(ix) excepting as required make or specifically permitted by this Agreement, entering into or amending authorize any Contract capital expenditures other than in accordance with the Manager Business' annual plan or any officer of other than capital expenditures not exceeding $100,000 individually or $500,000 in the Company; aggregate;
(x) increasing make any benefits under any Employee Benefit Plan or increasing the compensation payable or paidloans, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company advances (other than (A) any increase adopted advances in the ordinary course of business consistent with past practice in respect of the compensation of business) or capital contributions to, or investment in, any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required other person other than pursuant to the terms of an existing Employee Benefit Plan); preexisting commitments;
(xi) becoming liable in respect subject any of the Assets to any guarantee (Lien other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; Permitted Encumbrances;
(xii) repaying, prepaying cancel or otherwise discharging compromise any debt or satisfying claim or waive or release any Indebtedness or other material Liabilitiesrights of the Business, other than in debts, claims and rights which are not Assets or which are primarily related to the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; Retained Business;
(xiii) making any capital expenditures that are in modify practices with respect to the aggregate in excess collection of $100,000 (other than capital expenditures contemplated by Receivables or the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws)maintenance of inventory levels; or
(xiv) making enter into any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract agreement to do any of the foregoing(i) through (xiii).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Esc Medical Systems LTD), Asset Purchase Agreement (Coherent Inc), Asset Purchase Agreement (Coherent Inc)
Conduct of the Business. (a) From During the period from the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IXthe Closing, except to the extent described in Schedule 5.01 or otherwise as expressly required or specifically permitted by this AgreementAgreement or as consented to in writing by Purchaser, Seller shall cause the Company shall: Target Entities to, use their reasonable best efforts to (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies only in the ordinary course of business consistent with past practice; (viii) permitting comply in all material respects with all applicable Laws; and (iii) maintain and preserve intact the present organization, business and franchise of the Target Entities and the Business and relationships with customers, contract holders, reinsurers, CLIP providers, suppliers, licensors, licensees, contractors, distributors, regulators and others having business relationships with the Target Entities and the Business. Without limiting the generality of the foregoing, from the date of this Agreement to the Closing, except as expressly permitted or required by this Agreement, Seller shall cause each of the Target Entities not to do any of the assets following without Purchaser’s written consent:
(i) sell, lease, encumber, transfer or otherwise dispose of any of the Company Target Entities, assets, properties or rights or acquire any assets, properties or rights having a purchase price, either individually or in the aggregate, in excess of $100,000;
(ii) grant any new equity awards to any director, officer, employee, or independent contractor of the Target Entities;
(iii) incur, create, guaranty or assume any Indebtedness or otherwise become subject to a Lien (responsible for Indebtedness of any other Person, except unsecured current obligations and liabilities incurred in the ordinary course of business, or take any action that results in an Encumbrance, other than a Permitted LienEncumbrance, being imposed on any asset, property or right of the Target Entities;
(iv) enter into any agreement or sellingcommitment or make, leasingauthorize or commit to make any capital expenditures that exceed, licensing individually or otherwise disposing of in the aggregate, $100,000 except for capital expenditures in the amounts and for the purpose set forth in the Target Entities’ current capital expenditures budget as previously made available to Purchaser;
(v) cancel any assets debts or securities, including by merger, consolidation, asset sale waive any claims or other business combination, other than rights that are material to the Target Entities;
(vi) except in the ordinary course of business and consistent with past practice; , enter into or assume any Contract that would qualify as a Material Contract under Section 3.13(a) or amend or terminate any Material Contract;
(vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted except in the ordinary course of business and consistent with past practice in respect practice, enter into or assume any Contract that would qualify as a Reinsurance Contract under Section 3.16 or amend or terminate any Reinsurance Contract;
(viii) (A) merge or consolidate with any other Person, or adopt a plan of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or convert or otherwise change its legal form, (B) acquire any increase in benefits material assets or compensation required by Law (C) make any loan or required pursuant capital contribution to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of acquire any guarantee equity interests in, or otherwise make any investment in, any Person (other than a guarantee by the Company of a Liability of the Company that is made loans and advances to employees in the ordinary course of business consistent with past practicebusiness);
(ix) issue, sell, convey, pledge, otherwise dispose of, encumber, repurchase, reclassify, split or incurredeem any capital stock or evidence of indebtedness or other securities, assume or grant any options, warrants, calls, rights or commitments or any other agreements of any character obligating it to issue any shares of capital stock or other equity interests in the Target Entities or any evidence of Indebtedness or other securities;
(x) repurchase, redeem, or otherwise become liable acquire, or grant any rights or enter into any Contracts or commitments to repurchase, redeem, or acquire, any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Target Entities, or declare, set aside, make, or pay any dividend, disbursement or other distribution with respect to its capital stock or other securities or ownership interests (other than the Pre-Closing Dividend);
(xi) effect any recapitalization, reclassification, or similar change in respect the capitalization of any Indebtedness; the Target Entities;
(xii) repayingpay, prepaying settle or otherwise discharging compromise any material Tax audit or satisfying liability, amend any Indebtedness material Tax Return, make, change or other revoke any material Liabilitieselection related to Taxes, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning change any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) taxable period or any Tax election; filing accounting method, enter into any amended agreement relating to Taxes or otherwise with a Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting Authority, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, in each case with respect to the Target Entities;
(xiii) take any action that would or could reasonably be expected to result in any of the Section 338 Companies ceasing to be treated as an S corporation for the assessment U.S. federal income tax purposes or ASE ceasing to be treated as an entity disregarded as separate from its owner, Seller, for U.S. federal income tax purposes;
(xiv) make or authorize any change in its certificate of any Tax; incorporation or bylaws or similar organizational documents;
(xv) settlingenter into a new line of business, agreeing to settleabandon or discontinue an existing line of business, waiving surrender or otherwise compromising relinquish or discontinue any pending certificate of authority or threatened Actions or claims other Permit;
(xvi) (A) involving potential payments by enter into, adopt, amend or terminate any Plan, other than for non-material amendments to Plans affecting the Company Employees generally and arising in the ordinary course of more than $100,000 in aggregatebusiness and consistent with past practice (e.g., with respect to open enrollment for health plans), (B) that admit Liability increase the salary, bonus or consent other compensation (including any severance, profit sharing, retirement or insurance benefits) payable to any Employee or the benefits of any Employee, other than increases to non-monetary reliefofficer base salaries in the ordinary course of business and consistent with past practice, or (C) that pay or otherwise are grant any benefit not required by any Plan, or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in enter into any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract contract to do any of the foregoing, except in the case of each of (A)-(C) to the extent required by applicable Law;
(xvii) acquire or enter into any lease of, any real property or any direct or indirect interest in any real property;
(xviii) fail to pay or satisfy when due any material liability (other than any such liability that is being contested in good faith);
(xix) settle or compromise any material claim or proceeding;
(xx) make any material change in its underwriting, reinsurance, claims administration, pricing, reserving, accounting or investment practices or policies, including changes to investment guidelines (except as required by applicable accounting or actuarial rules or changes in the interpretation by a Governmental Authority or enforcement thereof);
(xxi) fail to keep, or cause to be kept, all insurance policies referred to in Section 3.17 of this Agreement, or commercially reasonable replacements therefor, in full force and effect through the close of business on the Closing Date; or
(xxii) make any material change in internal accounting controls or disclosure controls or procedures.
Appears in 3 contracts
Samples: Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Tiptree Inc.)
Conduct of the Business. (a) From The Seller (which reference, for purposes of this Article 6, includes the Trust Subsidiary from and after the time it is organized and becomes a party to this Agreement) will carry on the Business diligently and substantially in the same manner as heretofore, 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 until the Closing Date, except for activities or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted transactions expressly contemplated by this 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 Company shall: value of the 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 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 paragraph shall be construed as requiring Seller to engage in any activities or efforts outside of the ordinary course of business as presently conducted, except as otherwise expressly provided for in this Agreement. Without limiting the generality of the foregoing, and except as set forth on Schedule 6.01 hereto or as otherwise expressly 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, policies or procedures of accounting for or relating to or including the Business in effect at January 1, 1995, except as required by changes in generally accepted accounting procedures;
(iv) except as required by applicable law or under an existing Employee Contract or Employee Plan , (a) increase in any manner the compensation or fringe benefits of any Transferred Employee or pay any special benefit to such person, other than in the ordinary course of business consistent with past practice in all material respects normal amounts at normal times, or (including with respect to capital expendituresb) enter into, the timely making of modify or renew any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance Employee Contract with any applicable Laws)Transferred Employee, unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheldor establish, conditioned adopt, enter into or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (amend any Employee Plan covering or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts providing for any benefit to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; Transferred Employee;
(v) use its commercially reasonable efforts to keepsell, or to cause Spoonful to keeplease, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organizationpledge, value as a going concern and relationships with third parties (including lessorsencumber, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 assign or otherwise required dispose of any material Purchased Asset, Personal Property, Contract or specifically permitted by this Trust Agreement (other than any Retained Trust Agreement) or consented to in writing by take any action which would have a material adverse effect on the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term value of any of the foregoing); ;
(iivi) effecting with respect to the Business or any recapitalizationof the Purchased Assets, reclassificationincur any debt, dividendliability or obligation (whether absolute or contingent, split whether primary or like change in its capitalization secondary or whether directly by way of guaranty) or make any loan or advance, other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies case in the ordinary course of business consistent with past practice; ;
(vivii) permitting undertake, enter into or renew, amend or terminate, or give notice of a proposed renewal, amendment or termination of any commitment with respect to, (a) any Contract, Trust Agreement (other than any Retained Trust Agreement) or any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, Purchased Assets other than in the ordinary course of business consistent with past practice; practice or (viib) making any loans or advances to, capital improvement related to the Business or any investments inPurchased Asset, any other Person (except as provided in the case of loans or advances 1996 capital budget as previously disclosed to employees, in excess of $100,000 in the aggregate for all such loans and advances); Buyer;
(viii) pledging commit any act or otherwise encumbering of its Company LLC Interests omission which constitutes a material breach or default by the Seller under any Seller Regulatory Agreement, Trust Agreement (other Equity Interests; than any Retained Trust Agreement) or Contract;
(ix) excepting since September 30, 1995, change the procedures or practices relating to the Business other than as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; law;
(x) increasing establish any benefits under new trust account other than pursuant to GMB's policies and procedures in effect on June 30, 1995, as previously disclosed to Buyer, and in accordance with customary terms, conditions and standards and applicable law and consistent with prudent fiduciary and business practices;
(xi) waive any Employee Benefit Plan or increasing the compensation payable or paidmaterial right, whether conditionally in equity or otherwiseat law, that it has with respect to any employeeTrust Agreement or Contract, officer, manager or consultant of Company (other than (A) any increase adopted except in the ordinary course of business consistent with past practice in prudent fiduciary and business practices;
(xii) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement with respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or to, (Ba) any increase in benefits merger, consolidation, purchase and assumption transaction or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee business combination (other than as contemplated by this Agreement), (b) any acquisition of a guarantee material amount of assets or securities or assumption of liabilities or (c) any disposition of a material amount of assets or securities, 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 Company of parties hereto that any agreement entered into by the Seller for or relating to a Liability of the Company that is made Bank Sale Transaction as described in the ordinary course of business consistent with past practiceSection 2.07 above shall not be prohibited by this Section 6.01 (b) or incur, assume or otherwise become liable in respect of any Indebtedness(xi); (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; or
(xiii) making take any capital expenditures action that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures is intended or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would may reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the its representations and warranties set forth in this Agreement being or becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoinguntrue.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Vermont Financial Services Corp), Stock Purchase Agreement (Arrow Financial Corp)
Conduct of the Business. (a) From the date hereof until the Closing Date, except as specifically herein contemplated, GP shall cause Newco, the Company and the Subsidiaries to operate the respective businesses of Newco, the Company and the Subsidiaries in the ordinary course, and to make reasonable efforts consistent with past practices to preserve their relationships with customers, suppliers and others with whom Newco, the Company or any Subsidiary transacts business, and to maintain their assets in substantially the earlier termination same condition as of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by date of this Agreement, ordinary wear and tear excepted. Other than reductions in workforce specifically described on Schedule 7.1, GP shall, and shall cause the Company and each Subsidiary to, make reasonable efforts to keep available to the Buyer the opportunity to retain the services of and preserve relationships with the present employees of the Company and the Subsidiaries; provided that neither GP, the Company nor any Subsidiary shall be required to provide additional compensation or benefits to any employee in connection with such preservation requirement. GP shall: , and GP shall cause the Company and the Subsidiaries to deliver to the Buyer, as soon as practicable after they become available, monthly unaudited consolidated balance sheets and statements of income and cash flows of the Company and its Subsidiaries. In addition, except as specifically contemplated by any of the Transaction Agreements, GP shall not permit Newco, the Company nor any of the Subsidiaries to do any of the following without the prior written consent of the Buyer (such consent to not be unreasonably withheld or delayed):
(i) conduct grant to any employee of the Business Company or any Subsidiary any increase in compensation or benefits, except as may be required under existing agreements, benefit plans or applicable collective bargaining agreements, except for any increases in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent for which GP shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); solely obligated;
(ii) maintain make any change in effect the insurance coverage described on Schedule 7.16 (any method of accounting or reasonably equivalent replacement coverage); accounting practice or policy other than as required by GAAP;
(iii) use amend its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; constituent documents in any manner;
(iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew redeem or otherwise acquire any Business License that would otherwise expire pursuant to the terms thereof between the date shares of this Agreement and the Closing; its capital stock or issue any capital stock or any securities convertible or exercisable into or exchangeable for, capital stock;
(v) use its commercially reasonable efforts to keep, acquire all or to cause Spoonful to keep, available the services a substantial portion of the Business Employees subject to the normal hiring and firing assets or capital stock of Business Employees in the ordinary course of any business consistent with past practice and or any corporation, partnership, limited liability company, association or other business organization or division thereof;
(vi) use commercially reasonable efforts to preserve intact its business organizationexcept for the Target Pre-Closing Capital Expenditures, value as a going concern and relationships with third parties (including lessorsmake or incur any capital expenditure or series of related capital expenditures which, licensorsindividually or in the aggregate, suppliers, distributors and customers) and employees.is in excess of $500,000;
(bvii) From the date hereof until the Closing Datepay, loan or advance any amount to, or the earlier termination sell, transfer or lease any of this Agreement pursuant to Article IXits assets to, except to the extent described in Schedule 5.01 or otherwise required enter into any agreement or specifically permitted by this Agreement arrangement with, GP or consented to in writing by the Parent any of its Affiliates (which consent will not be unreasonably withheld, conditioned or delayed)other than Newco, the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iiiSubsidiaries or as contemplated on Schedule 7.1(vii)) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; ;
(viviii) permitting adopt or amend in any material respect any benefit plan to be assumed by the Company except as required by law or any collective bargaining agreement and except for any plan or amendment with respect to which GP shall remain solely responsible;
(ix) enter into, modify, amend, terminate or permit the lapse of any lease of, operating agreement or other material agreement relating to the Leased Real Property (except modifications or amendments associated with renewals of existing leases in the ordinary course of business and except for the lapse of any lease or agreement in accordance with its terms and the termination of any Lease or agreement identified on Schedule 4.12(b) and for which neither the Company nor any of the its Subsidiaries incurs any cost or expense as a result of such termination);
(x) permit any of its assets of the Company to become subjected to any Lien, other than Permitted Liens or as contemplated on Schedule 7.1(x);
(xi) sell, lease or otherwise dispose of any of its assets (other than (A) any Retained Property which is subject to a Lien purchase and sale agreement as identified on Schedule 7.8(b), provided the proceeds of such sales shall remain with the Company or its Subsidiaries, as the case may be, and such proceeds shall have no impact on the Working Capital Amount or (other than B) de minimis assets or those that are obsolete or worn-out or sales of inventory in the ordinary course of business);
(xii) incur or assume any Indebtedness, except as contemplated on Schedule 7.1(xii);
(xiii) implement any employee layoffs that could trigger the WARN Act;
(xiv) enter into, terminate, permit to lapse (except for a Permitted Lienlapse in accordance with its terms) or sellingmodify or amend any Material Contract except in the ordinary course of business;
(xv) except as set forth on Schedule 7.1(x)(v), leasing, licensing delay or otherwise disposing postpone the payment of any assets accounts payable, accelerate the collection of any accounts receivable or securities, including by merger, consolidation, asset sale or other business combination, change its cash management policies in each case other than in the ordinary course of business consistent business;
(xvi) enter into, modify, amend, terminate or permit the lapse (except for a lapse in accordance with past practice; (viiits terms) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase agreement or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to contract between the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets Subsidiaries and any Affiliate of the Company or revalue its inventory or reserves in respect any of its accounts receivable; Subsidiaries (xviii) taking any action including GP or failing to take any action that would result in its Subsidiaries), other than the Company or any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respectits Subsidiaries; or or
(xixxvii) authorizing, agreeing or committing or entering into a Contract agree to do any of the foregoing.
Appears in 2 contracts
Samples: Contribution and Stock Purchase Agreement, Contribution and Stock Purchase Agreement (Georgia Pacific Corp)
Conduct of the Business. (a) From Except as (i) set forth in Section 5.2(a) of the Sellers’ Disclosure Schedule or (ii) as is necessary and commercially reasonable in response to a Contagion Event or Contagion Event Measures, subject to Sellers providing Purchaser with advance notice and obtaining Purchaser’s prior written consent in respect of any such action (unless it is not reasonably practicable under the circumstances to provide such prior notice and obtain prior consent, in which case Sellers shall provide notice to Purchaser as soon as reasonably practicable), from the date hereof until the earlier of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: Sellers shall cause the Bank and the Transferred Subsidiaries to (i1) conduct the Business carry on their businesses in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed)respects; (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi2) use commercially reasonable efforts to preserve intact its their present business organizationorganizations and relationships; and (3) use commercially reasonable efforts to preserve the rights, value as a going concern franchises, goodwill and relations of their customers, clients and others with whom business relationships with third parties (including lessorsexist; provided, licensors, suppliers, distributors that this Section 5.2(a) shall not apply to the Excluded Assets and customers) and employeesLiabilities.
(b) From Except as set forth in Section 5.2(b) of the Sellers’ Disclosure Schedule or to the extent required to effect the Excluded Assets and Liabilities Transfer, from the date hereof until the earlier of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXAgreement, except to the extent described in Schedule 5.01 or as (A) otherwise expressly required or specifically permitted by this Agreement or Agreement, (B) consented to in writing in advance by the Parent Purchaser (which consent will shall not be unreasonably withheldconditioned, conditioned withheld or delayed), or (C) required by applicable Law, Sellers shall cause the Company shall refrain fromBank and the Transferred Subsidiaries not to: (i) issuing, selling amend the Bank’s or delivering any of its Company LLC Interests Transferred Subsidiaries’ Constituent Documents or other Equity Interests permit any waiver or issuing or selling grant any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing)consent under their respective Constituent Documents; (ii) effecting (A) merge or consolidate with any other Person, (B) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any other Person or any division thereof or any assets, securities or property, other than (x) acquisitions of securities under the Bank’s or an applicable Transferred Subsidiary’s investment portfolio consistent with the Bank’s or an applicable Transferred Subsidiary’s investment policy in effect as of the date hereof, (y) as may be deemed necessary or advisable by it in the exercise of its rights in connection with an Extension of Credit, or (z) acquisitions in the ordinary course of business, or (C) adopt a plan of complete or partial liquidation, dissolution, recapitalization, reclassificationrestructuring or other reorganization;
(A) make any new Extension of Credit (x) in an amount in excess of $50,000,000 to a single borrower or group of related borrowers, dividend(y) where the borrower’s senior funded debt to EBITDA ratio is more than 5.0 or the loan to value ratio is in excess of supervisory limits, split or like change in its capitalization other than dividends each case as computed by the Bank in the ordinary course of business, and (z) where the borrower’s interest coverage ratio, as computed by the Bank in the ordinary course of business, is less than 1.1 or (B) make any renewed Extension of Credit that is classified as “special mention” or “criticized” or words of similar imports by the Bank in the ordinary course of business consistent with past practice (for the avoidance of doubt, it being understood that the restrictions under this Section 5.2(b)(vi) shall not apply to any Extension of Credit that currently is or that will be included in the Excluded Assets and Liabilities); provided that, promptly following the terms and conditions date hereof the parties shall agree on a process for seeking any approvals required as a result of the Company’s Organizational Documentsforegoing covenant; provided, further, that, at a minimum such process shall include an obligation on the part of Purchaser to consent or provide written notice of objection to any such new or renewed Extension of Credit in writing within two (2) Business Days from the date the applicable Transferred Subsidiary provides Purchaser with written notice of such new Extension of Credit together with the related credit approval memo and other materials used by the applicable Transferred Subsidiary for internal approval purposes (and any failure to so respond shall be deemed to be consent to the applicable new or renewed Extension of Credit); (iiivii) amending its Organizational Documents; other than (ivx) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business (it being understood and agreed that “in the ordinary course of business” for purposes of this clause (vii) shall include the creation of deposit liabilities, issuances of letters of credit, -55- purchases of federal funds, borrowings from any Federal Home Loan Bank, sales of certificates of deposit, issuances of commercial papers, entry into repurchase agreements and satisfaction of legal requirements in the exercise of trust powers, in each case, on terms and in amounts consistent with past practice; ) or (viy) permitting for any Excluded Assets and Liabilities, (A) subject any material asset of the assets Bank or of the Company to become subject any Transferred Subsidiary to a Lien or permit, allow or suffer to exist any Lien in respect thereof, other than Permitted Liens; or (B) incur any liability for borrowed money (or guarantee any indebtedness for borrowed money), issue any debt securities, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person (other than a Permitted LienTransferred Subsidiary); (viii) or selling, leasing, licensing or otherwise disposing dispose of any material assets or securities, including by merger, consolidation, asset sale or other business combination(without limiting Section 5.2(b)(xii), other than Intellectual Property) to any person other than a Transferred Subsidiary, including existing branches of the Bank, except in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (pursuant to Contracts in force as of the case date of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Intereststhis Agreement; (ix) excepting other than as required or specifically permitted by this Agreement, entering into or amending the terms of any Contract with the Manager or any officer Benefit Plan existing as of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paiddate hereof, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation or benefits of any Business Employee, other than the payment of incentive compensation for completed performance periods based upon corporate performance, the performance of such employee whose annual base compensation does not exceed $125,000 after giving effect to and, if applicable, such increase or (B) any increase employee’s business, in benefits or compensation required by Law or required pursuant to each case determined in accordance with the terms of an existing Employee the applicable Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than Plan and in the ordinary course of business consistent with past practice, (B) enter into any change-in-control, retention, employment, severance, termination or waivingother similar agreement or arrangement with any Business Employee, cancelling or assigning increase or commit to increase the change-in-control, severance or termination pay or benefits payable to any claims Business Employee, (C) pay or rights of substantial value award, or commit to pay or award, any bonuses or incentive compensation to any Business Employee other than incentive compensation payments contemplated by clause (A) above, (D) enter into, establish, adopt, terminate or amend any Benefit Plan or any plan, program, arrangement, practice or agreement that would be a Benefit Plan if it were in existence on the ordinary course date hereof, except for de minimis administrative amendments that would not increase the benefits provided thereunder or the cost thereof to the Bank and the Transferred Subsidiaries, (E) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Benefit Plan, with respect to any Business Employee, (F) hire any Business Employee, other than as permitted under Section 5.10(e), (G) terminate the employment of business consistent any Business Employee with past practice; the title of Managing Director or above, other than for cause or pay any severance, termination pay or benefits to any employee without obtaining an effective comprehensive general release of claims against the Bank and the Transferred Subsidiaries, (xiiiH) making transfer the employment of any capital expenditures that are in the aggregate in excess Business Employee to Sellers or any of $100,000 their Affiliates (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) Bank or any Tax election; filing Transferred Subsidiary), or transfer the employment of any amended Tax Return; electing employee, officer, director, or changing natural person independent contractor of Sellers or any method of accounting for Tax purposes; settling their Affiliates (other than the Bank or any Action Transferred Subsidiary) to the Bank or claim in respect of Taxes; or consenting its Affiliates (other than as permitted under Section 5.10(e)), (I) grant to any extension Business Employee any right to reimbursement, indemnification, or waiver payment for any Taxes incurred under Section 409A or 4999 of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary reliefCode, or (CJ) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering intorecognize any union, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoing.labor organization or
Appears in 2 contracts
Samples: Share Purchase Agreement (Mitsubishi Ufj Financial Group Inc), Share Purchase Agreement (MUFG Americas Holdings Corp)
Conduct of the Business. (a) From the date hereof of this Agreement until the Closing Date, (or until the earlier termination of this Agreement pursuant to Article IXin accordance with Section 11.1), except as expressly required by applicable Law, as set forth on Schedule 7.1 of the Seller Disclosure Schedule, as contemplated by or required to the extent described in Schedule 5.01 implement this Agreement or otherwise required or specifically permitted by this any Ancillary Agreement, the Company or as otherwise waived or consented to in writing by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall: :
(ia) conduct operate and carry on the Business in the ordinary course of business consistent with past practice in all material respects practice;
(including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vib) use commercially reasonable efforts to preserve intact the goodwill of the Business and the relationships of Seller with its business organizationcustomers, value as a going concern and relationships with third parties (including lessors, licensorsvendors, suppliers, distributors Business Employees and customers) and employees.others having business relations with the Business;
(bc) From continue to maintain the date hereof until Books, Records and Files of Seller and its Affiliates exclusively or primarily related to the Closing DateBusiness on a basis consistent with past practice; and
(d) continue to make all necessary and material filings and payments with Governmental Authorities in connection with the Business (including all Registered IP) in a timely manner, and use commercially reasonable efforts to maintain in effect all material Permits required for the ongoing operation of the Business as presently conducted;
(e) perform all of Seller’s material obligations under the Assigned Contracts in accordance with the terms thereof;
(f) refrain from making, changing or revoking any Tax election; refrain from adopting or changing any accounting method with respect to Taxes; refrain from filing any amended Tax Return; refrain from entering into any closing agreement, settling or compromising any Tax claim or assessment; and refrain from consenting to any extension or waiver of the earlier termination of this Agreement pursuant limitation period applicable to Article IX, except any claim or assessment with respect to Taxes; in each case to the extent described taking such action would adversely affect the Purchased Assets or the Business in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented a Post-Closing Tax Period;
(g) pay and discharge all material Liabilities related to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the Purchased Assets as they become due and payable in the ordinary course of business consistent with past practice and business, subject to the terms and conditions of the CompanySeller’s Organizational Documents; ability to pursue in good faith any bona fide disputes;
(iiih) amending its Organizational Documents; not sell, lease, license, transfer, abandon, pledge, encumber (iv) making any redemption other than Permitted Encumbrances), fail to maintain or purchase otherwise dispose of any Purchased Assets, other than the sale of its Inventory and other dispositions of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies assets in the ordinary course of business consistent with past practice;
(i) not (i) exclusively license, assign or transfer any Purchased Business Intellectual Property or any Purchased Business Technology to any Person (including any current or former employee or consultant of Seller or any contractor or commercial partner of Seller); and (viii) permitting dispose of, abandon, or permit to lapse any rights in or to any Purchased Business Intellectual Property or any Purchased Business Technology;
(j) not grant any allowances or discounts on Products outside the ordinary course of business or sell Inventory in excess of consumption consistent with past practices in the ordinary course of business;
(k) not manufacture, or enter into any purchase commitments to purchase, Inventory in amounts outside the ordinary course of business;
(l) use commercially reasonable efforts not fail to keep current and in full force and effect or renew any of the assets of material Permits related to the Company to become subject to a Lien Business;
(m) not amend, modify, cancel or terminate any Assigned Contract (other than a Permitted Lienterminations or expirations at the end of the stated term after the date hereof);
(n) not waive, release, assign or sellingmodify any material benefit or claim under any Assigned Contract;
(o) not grant any Business Employee any increase in compensation or in severance or termination pay, leasinggrant any severance or termination pay, licensing or otherwise disposing enter into any new employment, deferred compensation or similar agreement with any such employee (except for any retention bonus plan which may be mutually agreed between Seller and Purchaser), or terminate the employment of any assets or securitiessuch employee without cause, including by merger, consolidation, asset sale or other business combination, other than except in the ordinary course of business consistent with past practice; ;
(viip) making comply in all material respects with all Laws applicable to the Business and, promptly following receipt thereof, give to the Purchaser copies of any loans notice received from any Governmental Authority or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending alleging any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation violation of any employee whose annual base compensation does such Laws; and
(q) not exceed $125,000 after giving effect to such increase or (B) take any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company material actions that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would could reasonably be expected to be material to delay the Company Closing; provided, however, except as expressly provided in this Section 7.1, nothing in this Section 7.1 shall prohibit Seller or its Affiliates from conducting their businesses, including the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by their reasonable discretion provided it shall comply with the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets terms of the Company Agreement, including this Section 7.1. Nothing contained herein shall give Purchaser, directly or revalue its inventory indirectly, the right to control or reserves in respect direct the operations of its accounts receivable; (xviii) taking any action or failing Seller prior to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Neophotonics Corp), Asset Purchase Agreement (Emcore Corp)
Conduct of the Business. (a) From Transferor agrees that during the period from the date hereof until the earlier of the Closing Date, or the earlier termination of this Agreement pursuant to Article IXAgreement, except as expressly provided in Section 5.1(b) hereof, or consented to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented Transferee in writing (which consent will shall not be unreasonably withheld, conditioned withheld or delayed), Transferor shall:
(i) at its own expense, take reasonable steps to maintain and protect the tangible Transferred Assets as they exist at the Effective Date against loss, theft, destruction, breakage or falling into disrepair (normal wear and tear excepted), it being understood and agreed by Transferor and Transferee that tangible Transferred Assets are held and maintained at the Facilities pursuant to storage facility agreements and that Transferor’s obligations under this Section 5.1(a)(i) as they relate to such tangible assets shall be satisfied (x) if Transferor complies with those terms and conditions of such agreements, including the continued payment of the Facilities’ fees, which, if breached, would reasonably be expected to have a material adverse effect on any Transferred Asset and (y) if, upon notice to Transferor of the occurrence of an event (other than a breach of the storage facility agreements) that has resulted in, or which could reasonably be expected to result in, the loss, theft, destruction or breakage of assets, Transferor takes all actions reasonably necessary to mitigate any such loss, theft, destruction or breakage; provided that, Transferor shall not be obligated to continue mitigation if it has incurred costs in connection therewith in excess of $5,000 if Transferor informs Transferee of the event and expected cost of mitigation and allows Transferee to continue mitigation efforts at Transferee’s sole cost and expense; and
(ii) maintain not (x) amend or terminate (prior to its expiration) any Assumed Contract or (y) grant any interest in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) license to use its commercially reasonable efforts to preserve the present relationships any of the Business with suppliersTransferred Assets to any Third Party, vendorsother than the interest, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) , that Transferor may be required to grant to BioVeris in accordance connection with the terms thereof Purchase Right (as such term is defined in the ECL License) and renew any Business License that would otherwise expire pursuant not to modify or terminate the terms thereof between ECL License.
(b) During the period from the date hereof until the earlier of the Closing or the termination of this Agreement and the Closing; (v) use its commercially reasonable efforts Agreement, Transferor shall provide prompt written notice to keepTransferee of any communications it receives relating to required filings, or renewal or maintenance fees to cause Spoonful be paid for Transferred Assets which constitute Patents or Registered Trademarks or applications to keepregister Trademarks. Transferor shall have no obligation to maintain or protect any Patents, available Trademarks or other Intellectual Property. Transferee may, in its sole discretion and sole expense, maintain and protect the services Transferred Assets which constitute Intellectual Property. In furtherance of the Business Employees subject foregoing, during the period from the date hereof until the earlier of the Closing or the termination of this Agreement, the Wellstat Parties may make any filings they reasonably deem necessary or appropriate to protect against expiration or abandonment of such Transferred Assets for failure to pay renewal or maintenance fees or to prosecute, at the normal hiring and firing of Business Employees in the ordinary course of business consistent Wellstat Parties’ sole expense. In connection with past practice and (vi) any such filings, Transferor will use commercially reasonable efforts to preserve intact its business organizationcooperate, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented reasonably necessary to in writing by permit the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering Wellstat Parties to make any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingfilings.
Appears in 2 contracts
Samples: Asset Transfer Agreement (PDL Biopharma, Inc.), Settlement Agreement (PDL Biopharma, Inc.)
Conduct of the Business. (a) From The Company will, and the date hereof until Company and the Closing DateSeller will cause each Subsidiary to, or comply with the earlier termination of this Agreement pursuant to Article IX, except following covenants prior to the extent described Closing, unless otherwise approved in Schedule 5.01 or otherwise required or specifically permitted writing by this Agreement, the Company shall: Purchaser:
(i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); its legal existence;
(ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially all reasonable efforts to preserve the present relationships Business and its business organization intact, retain its licenses, permits, authorizations, franchises and certifications, and preserve the existing contracts and goodwill of the Business with its customers, suppliers, vendors, licensees service providers, officers, employees, independent contractors and other Persons others having business relations with which it;
(iii) conduct its business only in the Ordinary Course of Business has business relations; (including without limitation construction of improvements to the Company Property, sales of lots, Fractional Interests and Golf Memberships, the payment of payables and capital expenditures) and in compliance in all material respects with all applicable Legal Requirements;
(iv) maintain have in effect and maintain at all times all insurance of the Business Licenses (if any) kinds, in accordance the amounts and with the terms thereof insurers as is presently in effect or equivalent insurance and renew any Business License that would otherwise expire pursuant to assist the terms thereof between Purchaser in arranging the date of this Agreement and the Closing; insurance contemplated in Section 8.1(u);
(v) use maintain its commercially reasonable efforts to keepbooks, or to cause Spoonful to keepaccounts and records in its usual, available the services regular and ordinary manner;
(vi) confer with representatives of the Business Employees subject Purchaser to report material operational matters and the normal hiring and firing status of Business Employees in ongoing operations upon reasonable advance notice by the ordinary course of business consistent with past practice and Purchaser;
(vivii) use commercially reasonable efforts to preserve intact its business organizationobtain all Required Consents;
(viii) prepare and timely file all Tax Returns required to be filed by it and pay all Taxes when due; and
(ix) use all reasonable efforts to operate in such a manner as to assure that the representations and warranties of the Company and the Seller set forth in this Agreement will be true and correct in all material respects as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date, value as a going concern taking into account construction of improvements to the Company Property, sales of lots, Fractional Interests and relationships with third parties (including lessorsGolf Memberships, licensorsthe payment of payables and capital expenditures, suppliers, distributors and customers) and employeesall in the Ordinary Course of Business.
(b) From The Company will not, and the date hereof until Company and the Closing DateSeller will not permit any Subsidiary to, or do any of the earlier termination of this Agreement pursuant following prior to Article IXClosing, except to the extent described in Schedule 5.01 or unless otherwise required or specifically permitted by this Agreement or consented to approved in writing by the Parent (Purchaser, which consent will approval shall not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: :
(i) issuing, selling change its method of management or delivering operations in any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); material respect;
(ii) effecting any recapitalizationsell, reclassificationlease, dividendpledge, split encumber, dispose of or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of license any assets or securities, including by merger, consolidation, asset sale properties or other business combinationmake any commitment to do so, other than in the ordinary course Ordinary Course of business Business;
(iii) incur or commit to incur any material Indebtedness or renew or refinance or commit to incur any material Indebtedness or renew or refinance or commit to renew or refinance any Outstanding Indebtedness or assume, guarantee or endorse or otherwise become responsible for the obligation of any other Person, or subject any of its properties or assets to any Lien (any Indebtedness approved by the prior written consent of the Purchaser, together with the Outstanding Indebtedness, is referred to herein as “Permitted Indebtedness”);
(iv) make any loans or advances, other than (i) deposits or advances in connection with construction of improvements to, or the acquisition of furniture, fixtures or equipment for, the Project(s) in the Ordinary Course of Business, or (ii) extensions of credit to members of the golf club operated by the Company, each of (i) and (ii) in the Ordinary Course of Business and in compliance with applicable Legal Requirements or the requirements of any Material Contract and other than travel and similar advances to employees of the Company and the Subsidiaries in the Ordinary Course of Business;
(v) modify, amend, cancel or terminate any Material Contract;
(vi) make any change in the compensation paid or payable to any officer, director, manager, employee, agent, representative, independent contractor or consultant as shown or required to be shown on Schedule 3.21, or pay or agree to pay any bonus or similar payment (other than establishing compensation for new employees and independent contractors in a manner reasonably consistent with past practice; existing Company and Subsidiary practices, and bonus payments made to employees or independent contractors in the Ordinary Course of Business, or other amounts to which the Company or any Subsidiary is committed and which are expressly disclosed in this Agreement) or terminate, amend, modify or change any Benefit Plan;
(vii) making any loans or advances topromote, change the job title of, or otherwise alter in any investments inmaterial respect the responsibilities or duties of, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advancesset forth on Schedule 3.21(c); ;
(viii) pledging terminate the services of any present employee, consultant or otherwise encumbering agent except in the Ordinary Course of its Company LLC Interests Business or other Equity Interests; for good cause shown, except that no Person set forth on Schedule 3.21(c) shall be terminated except for good cause shown;
(ix) excepting as required or specifically permitted except for (i) sales in the Ordinary Course of Business of lots, Fractional Interests and Golf Membership and (ii) Contracts entered into in the Ordinary Course of Business for construction of drainage, roadways, infrastructure, Dwelling Units, clubhouse and other vertical improvements (which sales and Contracts shall not require prior approval by this Agreementthe Purchaser), entering enter into or amending any Contract with respect to which the Manager Company or any officer of the Company; (x) increasing Subsidiary has any benefits under any Employee Benefit Plan liability or increasing the compensation payable or paid, whether conditionally obligation involving more than $50,000 contingent or otherwise, to or which may otherwise have any employee, officer, manager or consultant of Company (other than (A) any increase adopted in continuing effect after the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material LiabilitiesClosing, other than in the ordinary course Ordinary Course of business consistent with past Business, or which may place any limitation on the method of conducting or scope of the Business, provided, however, that neither the Company nor any Subsidiary shall enter into any loan, credit, guarantee or similar Contract relating to Indebtedness, other than Permitted Financing;
(x) declare, make or cause to be made or set aside any dividend, distribution, redemption, repurchase, recapitalization, reclassification, issuance, split, combination or other transaction involving the limited liability company interests, capital stock or other equity securities of the Company or any Subsidiary; or authorize the creation or issuance of any additional limited liability company interest, capital stock or other equity securities, or any option, warrant or right to acquire any such interests, capital stock or equity securities; or split, combine or reclassify any limited liability company interest, capital stock or other equity securities;
(xi) propose or adopt any amendment of any of its organizational documents;
(xii) make any change in its accounting practices or procedures, except as required by GAAP;
(xiii) make any upward revaluation of any of its assets or, except as required by law, file or make any change to any material Tax practice, Tax election or waivingany Tax Return;
(xiv) change its customer pricing, cancelling rebates or assigning any claims or rights of substantial value discounts, other than in the ordinary course Ordinary Course of Business;
(xv) acquire any material assets, properties, business consistent with past practice; or Person, whether by merger or consolidation, purchase of assets or equity securities or any other manner, in a single transaction or a series of related transactions, other than improvements constructed in the Ordinary Course of Business on the Company Property;
(xiiixvi) making cancel or waive any rights of substantial value, or pay, discharge or settle any claim of substantial value, other than in the Ordinary Course of Business;
(xvii) make any capital expenditures that are that, individually or in the aggregate in excess of aggregate, exceed $100,000 (25,000, other than capital expenditures contemplated by in connection with the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods construction of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or improvements to the Company Property in the Ordinary Course of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; ;
(xviii) taking settle or compromise any action suit or failing claim or threatened suit or claim relating to take the Transactions or make any action that would result in any of the representations and warranties set forth in this Agreement becoming false Tax election or inaccurate in settle or compromise any material respect; or income tax liability;
(xix) authorizing, agreeing or committing or entering into take any other action which could have a Contract Material Adverse Effect; or
(xx) commit to do any of the foregoingforegoing referred to in clauses (i) - (xix).
Appears in 1 contract
Samples: Securities Purchase Agreement (Cold Spring Capital Inc.)
Conduct of the Business. (a) From Except as (i) set forth in Section 5.2(a) of the Sellers’ Disclosure Schedule or (ii) as is necessary and commercially reasonable in response to a Contagion Event or Contagion Event Measures, subject to Sellers providing Purchaser with advance notice and obtaining Purchaser’s prior written consent in respect of any such action (unless it is not reasonably practicable under the circumstances to provide such prior notice and obtain prior consent, in which case Sellers shall provide notice to Purchaser as soon as reasonably practicable), from the date hereof until the earlier of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: Sellers shall cause the Bank and the Transferred Subsidiaries to (i1) conduct the Business carry on their businesses in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed)respects; (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi2) use commercially reasonable efforts to preserve intact its their present business organizationorganizations and relationships; and (3) use commercially reasonable efforts to preserve the rights, value as a going concern franchises, goodwill and relations of their customers, clients and others with whom business relationships with third parties (including lessorsexist; provided, licensors, suppliers, distributors that this Section 5.2(a) shall not apply to the Excluded Assets and customers) and employeesLiabilities.
(b) From Except as set forth in Section 5.2(b) of the Sellers’ Disclosure Schedule or to the extent required to effect the Excluded Assets and Liabilities Transfer, from the date hereof until the earlier of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXAgreement, except to the extent described in Schedule 5.01 or as (A) otherwise expressly required or specifically permitted by this Agreement or Agreement, (B) consented to in writing in advance by the Parent Purchaser (which consent will shall not be unreasonably withheldconditioned, conditioned withheld or delayed), or (C) required by applicable Law, Sellers shall cause the Company shall refrain from: Bank and the Transferred Subsidiaries not to:
(i) issuingamend the Bank’s or any Transferred Subsidiaries’ Constituent Documents or permit any waiver or grant any consent under their respective Constituent Documents;
(ii) (A) merge or consolidate with any other Person, selling (B) acquire (including by merger, consolidation, or delivering acquisition of stock or assets) any interest in any other Person or any division thereof or any assets, securities or property, other than (x) acquisitions of securities under the Bank’s or an applicable Transferred Subsidiary’s investment portfolio consistent with the Bank’s or an applicable Transferred Subsidiary’s investment policy in effect as of the date hereof, (y) as may be deemed necessary or advisable by it in the exercise of its Company LLC Interests rights in connection with an Extension of Credit, or (z) acquisitions in the ordinary course of business, or (C) adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other Equity Interests reorganization;
(iii) issue, transfer, award, grant or issuing or selling any securities convertible intootherwise permit to become outstanding, or options with respect todispose of or encumber or pledge, or warrants authorize or propose the creation of, any additional Shares or Rights or any additional shares of capital stock of the Bank, or any Transferred Subsidiary, or any Rights relating to the same, or for which the Bank or any Transferred Subsidiary would have any liability;
(iv) (A) directly or indirectly adjust, split, combine or reclassify, subdivide or otherwise amend the terms of, purchase or rights to subscribe forotherwise acquire, any shares of its Company LLC Interests stock or debt securities or any Rights related to the same, (B) declare or pay any noncash dividend or make any other Equity Interests (or amending any term noncash distribution in respect of any of the foregoing); Bank’s capital stock, or (iiC) effecting declare or pay any recapitalization, reclassification, dividend, split cash dividend or like change make any other cash distribution in its capitalization respect of any of the Bank’s capital stock after the Estimated Closing Balance Sheet Date (other than dividends in the Special Dividend Transaction);
(v) pay, discharge, settle or compromise any Action or threatened Action, other than any payment, discharge, settlement or compromise in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; that (iiiA) amending its Organizational Documents; does not create negative precedent for other pending or potential proceedings, actions or claims, (ivB) making any redemption or purchase of any of its of its Company LLC Interests does not involve monetary damages or other Equity Interests; settlement that would exceed $5,000,000 individually or $20,000,000 in the aggregate in excess of reserves as they existed on June 30, 2021, (vC) does not involve injunctive relief or any other non-monetary relief (other than other non-monetary relief in the ordinary course of business), or (D) relates to the Excluded Assets and Liabilities;
(vi) (A) mergingmake any new Extension of Credit (x) in an amount in excess of $50,000,000 to a single borrower or group of related borrowers, consolidating (y) where the borrower’s senior funded debt to EBITDA ratio is more than 5.0 or combining with any Person the loan to value ratio is in excess of supervisory limits, in each case as computed by the Bank in the ordinary course of business, and (z) where the borrower’s interest coverage ratio, as computed by the Bank in the ordinary course of business, is less than 1.1 or (B) acquiring make any material assets, except for acquisitions renewed Extension of inventory, equipment and supplies Credit that is classified as “special mention” or “criticized” or words of similar imports by the Bank in the ordinary course of business consistent with past practice(for the avoidance of doubt, it being understood that the restrictions under this Section 5.2(b)(vi) shall not apply to any Extension of Credit that currently is or that will be included in the Excluded Assets and Liabilities); (vi) permitting provided that, promptly following the date hereof the parties shall agree on a process for seeking any approvals required as a result of the assets foregoing covenant; provided, further, that, at a minimum such process shall include an obligation on the part of Purchaser to consent or provide written notice of objection to any such new or renewed Extension of Credit in writing within two (2) Business Days from the Company date the applicable Transferred Subsidiary provides Purchaser with written notice of such new Extension of Credit together with the related credit approval memo and other materials used by the applicable Transferred Subsidiary for internal approval purposes (and any failure to become subject so respond shall be deemed to a Lien be consent to the applicable new or renewed Extension of Credit);
(vii) other than a Permitted Lien(x) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business (it being understood and agreed that “in the ordinary course of business” for purposes of this clause (vii) shall include the creation of deposit liabilities, issuances of letters of credit, purchases of federal funds, borrowings from any Federal Home Loan Bank, sales of certificates of deposit, issuances of commercial papers, entry into repurchase agreements and satisfaction of legal requirements in the exercise of trust powers, in each case, on terms and in amounts consistent with past practice) or (y) for any Excluded Assets and Liabilities, (A) subject any material asset of the Bank or of any Transferred Subsidiary to a Lien or permit, allow or suffer to exist any Lien in respect thereof, other than Permitted Liens; or (viiB) making incur any loans liability for borrowed money (or advances toguarantee any indebtedness for borrowed money), issue any debt securities, assume, guarantee, endorse or any investments in, otherwise as an accommodation become responsible for the obligations of any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advancesother than a Transferred Subsidiary); ;
(viii) pledging or otherwise encumbering dispose of its Company LLC Interests or any material assets (without limiting Section 5.2(b)(xii), other Equity Interests; (ixthan Intellectual Property) excepting as required or specifically permitted by this Agreementto any person other than a Transferred Subsidiary, entering into or amending any Contract with the Manager or any officer including existing branches of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paidBank, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted except in the ordinary course of business consistent with past practice or pursuant to Contracts in respect force as of the compensation date of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or this Agreement;
(Bix) any increase in benefits or compensation other than as required by Law or required pursuant to the terms of an any Benefit Plan existing Employee Benefit Plan); as of the date hereof, (xiA) becoming liable in respect increase the compensation or benefits of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material LiabilitiesBusiness Employee, other than the payment of incentive compensation for completed performance periods based upon corporate performance, the performance of such employee and, if applicable, such employee’s business, in each case determined in accordance with the terms of the applicable Benefit Plan and in the ordinary course of business consistent with past practice, (B) enter into any change-in-control, retention, employment, severance, termination or waivingother similar agreement or arrangement with any Business Employee, cancelling or assigning increase or commit to increase the change-in-control, severance or termination pay or benefits payable to any claims Business Employee, (C) pay or rights of substantial value award, or commit to pay or award, any bonuses or incentive compensation to any Business Employee other than incentive compensation payments contemplated by clause (A) above, (D) enter into, establish, adopt, terminate or amend any Benefit Plan or any plan, program, arrangement, practice or agreement that would be a Benefit Plan if it were in existence on the date hereof, except for de minimis administrative amendments that would not increase the benefits provided thereunder or the cost thereof to the Bank and the Transferred Subsidiaries, (E) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Benefit Plan, with respect to any Business Employee, (F) hire any Business Employee, other than as permitted under Section 5.10(e), (G) terminate the employment of any Business Employee with the title of Managing Director or above, other than for cause or pay any severance, termination pay or benefits to any employee without obtaining an effective comprehensive general release of claims against the Bank and the Transferred Subsidiaries, (H) transfer the employment of any Business Employee to Sellers or any of their Affiliates (other than the Bank or any Transferred Subsidiary), or transfer the employment of any employee, officer, director, or natural person independent contractor of Sellers or any of their Affiliates (other than the Bank or any Transferred Subsidiary) to the Bank or its Affiliates (other than as permitted under Section 5.10(e)), (I) grant to any Business Employee any right to reimbursement, indemnification, or payment for any Taxes incurred under Section 409A or 4999 of the Code, or (J) recognize any union, labor organization or employee association as the representative of any Business Employees, or enter into, establish or adopt any Collective Bargaining Agreement;
(x) other than the capital expenditures (A) pre-approved by Purchaser in writing or capital expenditures necessary for safety and soundness purposes or (B) made with respect to the businesses that currently are or will be included in the Excluded Assets and Liabilities (to the extent all payment obligations thereunder are taken into account in the Estimated Closing TBV and Closing TBV), undertake or authorize any capital expenditures not contemplated by the budget set forth on in Section 5.2(b)(x) of the Sellers’ Disclosure Schedule that are, in the aggregate, in excess of $30,000,000 per annum;
(xi) change any method of financial accounting or accounting practice or policy, except as may be required from time to time by GAAP and/or requirements under applicable Law (including applicable regulatory accounting principles) (without regard to any optional early adoption date);
(xii) except for non-exclusive license in the ordinary course of business consistent with past practice; and expiration of Intellectual Property at the end of its natural term, sell, assign, transfer, dispose of, abandon, allow to expire or license any material Intellectual Property owned by the Bank or any Transferred Subsidiary;
(xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by make, change or to the Company of more than $100,000 in aggregaterevoke any material Tax election, (B) that admit Liability change any material method of Tax accounting, (C) change any material Taxable year or period, (D) enter into any material closing agreement with respect to Taxes, (E) file any material amended Tax Return, (F) settle or compromise any material Tax claim or assessment, or (G) surrender any material claim for a refund of Taxes, in each case except to the extent such action (1) solely relates to the Seller’s consolidated, combined, affiliated or unitary Tax returns and (2) would not reasonably be expected to have the effect of materially increasing the Tax liability of Purchaser for any period ending after the Closing Date;
(xiv) make application for the opening, relocation or closing of any, or open, relocate or close any, branch or automated banking facility of the Bank, other than those pending as of the date of this Agreement and set forth in Section 5.2(b)(xiv) of the Sellers’ Disclosure Schedule, or permit the revocation or surrender by the Bank or any Transferred Subsidiary of its certificate of authority to maintain any such facility, except as may be required by any Governmental Authority;
(xv) enter into any material new line of business or change in any material respect its lending, underwriting, risk and asset liability management and other banking, operating, and servicing policies, except (A) as required by applicable Law, (B) as otherwise may be requested by a Governmental Authority, (C) as necessary for safety and soundness purposes, or (D) as solely related to the Excluded Assets and Liabilities;
(xvi) except (A) in the ordinary course of business or (B) as solely related to the Excluded Assets and Liabilities, (x) amend, modify or change any investment practices of the Bank or any Transferred Subsidiary or (y) make any change in any material respect to the investment portfolio of the Bank or any Transferred Subsidiary in terms of duration, credit, quality or type of interests, except as required by applicable Law;
(xvii) except in the ordinary course of business, (A) materially amend, waive, modify or consent to non-monetary reliefthe termination of any Material Contract, (B) enter into any Contract that would have been a Material Contract if in effect as of the date hereof, or (C) that otherwise are enter into any Contract with any Affiliate or engage in any transaction with any Affiliate (other than solely by and among the Bank and the Transferred Subsidiaries);
(xviii) knowingly take any action (including a business acquisition, sale or other strategic transaction) that, or fail to take any action if such failure, would reasonably be expected to be material prevent, materially impede or materially delay the consummation of the Transactions, or impair the Sellers’ ability to perform their obligations under this Agreement or consummate the Transactions;
(xix) make any change that, to the Company Sellers’ Knowledge, will have an ongoing material adverse effect on the operation or the Business; (xvi) entering into, adopt, terminate, modify, renew security of any IT Assets owned or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments controlled by the Company of less than $10,000 per month and that can be terminated Bank or any Transferred Subsidiary, except as required by the Company upon 60 days’ or less notice without penalty; applicable Law;
(xviixx) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to knowingly take any action that would is intended or reasonably likely to result in any of the representations and warranties conditions set forth in this Agreement becoming false ARTICLE 6 not being satisfied; or
(xxi) authorize, announce an intention, or inaccurate in enter into any material respect; agreement or (xix) authorizing, agreeing or committing or entering into a Contract commitment with respect to do any of the foregoing.
(c) During the period through the Closing Date or earlier termination of this Agreement, except as (A) otherwise expressly contemplated by the Transaction Documents, (B) consented to in writing in advance by Seller Holdco (which consent shall not be unreasonably withheld, conditioned or delayed), or (C) required by applicable Law, Purchaser shall not, and shall cause its Subsidiaries not to:
(i) amend the Constituent Documents of Purchaser or any Subsidiary in a manner that would impair Purchaser’s ability to perform its obligations under the Transaction Documents or consummate the Transactions on a timely basis;
(ii) adjust, split, combine or reclassify any capital stock of Purchaser or make, declare or pay any extraordinary dividend on any capital stock of Purchaser, in each case unless the Stock Consideration is equitably adjusted (which may be effected upon notice by Purchaser to Sellers) to provide Sellers the same economic effect as contemplated by this Agreement prior to such event;
(iii) knowingly take any action (including a business acquisition, sale or other strategic transaction) that, or fail to take any action if such failure, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions Agreement, or impair Purchaser’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(iv) knowingly take any action that is intended or reasonably likely to result in any of the conditions set forth in ARTICLE 6 not being satisfied; or
(v) authorize, announce an intention, or enter into any formal or informal agreement or commitment with respect to any of the foregoing.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing Date, except as (x) otherwise expressly permitted or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or the Ancillary Agreements (including actions required to be taken in order to consummate the Pre-Closing Restructuring in the manner provided in Exhibit A hereto and, as applicable, the exercise or failure to exercise the European Sale Option), (y) set forth in Section 4.1 of the Seller Disclosure Letter or (z) otherwise consented to in writing by the Parent Buyer (which consent will shall not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuingSellers shall, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants and shall cause their respective Subsidiaries (including the Companies and the Transferred Subsidiaries) to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of A) conduct the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends Business in the ordinary course consistent in all material respects with past practice, (B) continue to make capital expenditures in the ordinary course of business substantially consistent with past practice (and, with respect to 2015, in an aggregate amount not less than 85% of the budgeted amount therefor under the capital expenditure budget for the Business set forth in Section 4.1(q) of the Seller Disclosure Letter (the “2015 CapEx Budget”) (prorated, as applicable, through the Closing Date in the event that the Closing occurs in 2015)), (C) use reasonable best efforts to preserve the business operations, assets, organization and goodwill of the Business, relationships with employees, customers, suppliers and other Persons having material business relationships with the Business, books and records of the Business, Permits and the terms Policies and conditions insurance coverage for the Business, (D) notwithstanding the fact that the Facility Consolidation is set forth on Section 4.1 of the Company’s Organizational Documents; Seller Disclosure Letter, keep Buyer reasonably apprised on a reasonably current basis in respect of the Facility Consolidation and matters related thereto and consider in good faith requests made by Buyer in respect of the Facility Consolidation (iiiincluding in respect of (x) amending its Organizational Documents; mitigation of impacts on business relations resulting therefrom (ivincluding in respect of employees, customers and suppliers) making any redemption or purchase and (y) creation and maintenance of sufficient inventory at the Thousand Oaks Facility), and (E) keep Buyer reasonably apprised on a reasonably current basis in respect of any Litigation initiated or proposed to be initiated by any of its the Companies or any of its Company LLC Interests or the Transferred Subsidiaries (other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any than non-material assets, except for acquisitions of inventory, equipment and supplies Litigation in the ordinary course of business consistent and Litigation in which claimed damages are less than $50,000), and (ii) in accordance with past practice; other affirmative requirements set forth herein and without limiting the generality of the foregoing, Sellers shall not, and shall not permit any of their respective Subsidiaries (vi) permitting including the Companies or any of the assets Transferred Subsidiaries) to take any of the following actions with respect to the Business, or any of the Companies or the Transferred Subsidiaries, or any of their respective assets, properties employees or liabilities, as applicable:
(a) (i) amend (including through merger) the Organizational Documents of any of the Companies or the Transferred Subsidiaries, (ii) take or authorize any action to wind up the affairs, liquidate or dissolve a Company or Transferred Subsidiary, or (iii) form (or participate in the formation of) or invest or commit to become subject invest in any legal entity or other Person (other than investment or commitment to invest in a Company or a current wholly-owned Subsidiary of a Company);
(b) (i) amend any Company Benefit Plan or any Seller Benefit Plan or establish any new arrangement that would (if it were in effect on the date hereof) constitute a Company Benefit Plan or Seller Benefit Plan, (ii) grant to any Transferred Employee or Transferred Seller Employee any right to or any increase in change in control, severance or termination pay, or (iii) increase or take any action to increase the rate of compensation to any Transferred Employee or Transferred Seller Employee, or increase or take any action to increase benefits under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan available to any Transferred Employee or Transferred Seller Employee, in the case of each of clause (i), (ii) and (iii) other than (X) Ordinary Course Annual Compensation Increases, (Y) to the extent required under any existing Company Benefit Plan, Seller Benefit Plan or collective agreement in effect on the date hereof or (Z) bonus compensation, severance or other amounts that are paid in full prior to Closing or with respect to which Buyer, the Companies and the Transferred Subsidiaries shall have no Liability; provided, however, that this subsection (b) shall not prohibit any member of the Seller Group from amending in any material respect any Seller Benefit Plan that is not listed on Section 2.16(a)(ii) of the Seller Disclosure Letter or adopting any new arrangement for which the Companies and the Transferred Subsidiaries will not have any Liability after the Closing, in each case in the ordinary course of business, so long as such action is not targeted at any Transferred Employee or Transferred Seller Employee (or group thereof) and applies uniformly to employees of the Companies and the Transferred Subsidiaries and other similarly-situated employees of the Seller Group (but, unless otherwise required by applicable Law or any applicable Collective Agreement, such amendments or actions shall not be required to be taken into account in determining whether Buyer has satisfied its obligations under Section 4.4(a)(i));
(c) issue, sell, pledge, transfer, purchase, redeem or grant options, warrants or rights to purchase or subscribe to, enter into any arrangement or Contract with respect to the issuance, sale, pledge, transfer of, or redemption or repurchase of, any Company Securities or any Transferred Subsidiary Securities or make any changes (by combination, reorganization or otherwise) in the capital structure of any of the Companies or the Transferred Subsidiaries;
(d) pay, declare or make any dividend or other distribution other than dividends or distributions payable solely in cash or Cash Equivalents prior to the Effective Time (so long as, after payment of such dividend or distribution, the amount of cash and Cash Equivalents in the Company Group at Closing remains reasonably sufficient to operate the Business in the ordinary course without undue disruption for the period immediately following the Closing);
(e) sell, assign, transfer, pledge or encumber, or grant, create or incur any Lien (other than a Permitted LienLien and Liens securing existing Indebtedness or Indebtedness incurred as permitted by this Section 4.1) on, any of its Assets (other than Intellectual Property, which shall be governed under Section 4.1(f)), interests or sellingbusinesses, leasingincluding the equity interests of the Companies and the Transferred Subsidiaries, licensing other than (i) dispositions of Assets for consideration of less than $500,000 in the aggregate, and (ii) sales of inventory and other tangible personal property in the ordinary course of business and sales of worn-out or obsolete tangible personal property;
(f) sell, assign, transfer, pledge (other than granting, creating or incurring any Permitted Lien or Lien securing existing Indebtedness or Indebtedness incurred as permitted by this Section 4.1), lease, license or sublicense, or otherwise disposing dispose of to any Person any material Business Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business;
(g) make any material change to its accounting policies or practices, except as required by applicable accounting standards or applicable Law;
(h) make or adopt any change in any method of Tax accounting or in any Income Tax or other material Tax election that would bind a Company or Transferred Subsidiary after Closing, settle or compromise any Income Tax or other material Tax liability or claim for Income Tax or other material Tax refund, file any amended Tax Return, prepare or file any Tax Return in a manner inconsistent with past practice, enter into any closing agreement relating to Taxes or any Tax Sharing Agreement (other than the Tax Consolidation Exit Agreement), consent to any extension or waiver of the limitations period applicable to any claim or assessment for Taxes, incur any Income Tax or other material Tax outside the ordinary course of business (other than with respect to the Pre-Closing Restructuring) that would not be indemnifiable under Section 8.2, or fail to pay any Tax as such Tax becomes due and payable, except, in each case, as required by applicable Tax Law;
(i) make any acquisition of, or investment in, or loan to, or acquire all or substantially all of the properties or assets of, any Person or securitiesgroup of related Persons (or any division or business unit thereof), including whether directly or indirectly (whether by purchase of stock, securities or equity interests, or by merger, consolidationconsolidation or otherwise, asset sale and whether in one or a series of related transactions);
(j) merge or consolidate with any other business combinationPerson, or restructure, reorganize, or recapitalize any of the Companies or Transferred Subsidiaries;
(k) (i) enter into, terminate, assume or amend in any respect that is materially adverse to the Business any Material Contract disclosed (or that would be required to be disclosed if it were entered into prior to the date hereof), determined for purposes of clauses (iv), (v) and (vi) of Section 2.9(a) by replacing references in such clauses to the 12-month period ended December 31, 2014, with what is reasonably expected for the 12-month period commencing on the Closing Date) under clauses (ii), (iv), (v), (vi), (viii) or (ix) of Section 2.9(a) or Section 2.19(a), or (ii) enter into any Lease that would be required to be disclosed if it were entered into prior to the date hereof under Section 2.10(c) that has a term in excess of twelve (12) months and that involves annual rental payments in excess of $75,000, individually, or $250,000, in the aggregate (it being agreed that, except as otherwise expressly provided in this Section 4.1, no member of the Company Group shall be permitted to enter into, terminate, assume or amend in any respect any other Contract or Material Contract (or any Contract that would be required to be disclosed as a Material Contract if it were entered into prior to the date hereof) other than in the ordinary course of business consistent with past practicebusiness); (viiprovided, however, that this Section 4.1(k) making shall not apply to any loans or advances tosupplier, distributor, or customer Contracts related to the pressure division of the Business; and provided further, that Sellers shall have the right to redact any investments inother Contracts containing competitively sensitive information as Seller’s counsel reasonably determines should not be disclosed to Buyer in connection with the provisions of this Section 4.1(k) in order to ensure compliance by the Parties with applicable Laws);
(l) (i) enter into, assume, extend or amend in any material respect any employment agreement or other Contract with, or otherwise hire, any employee or other Person individual making (in the case of loans or advances proposed to employees, be making) in excess of $100,000 150,000 per annum in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreementbase cash compensation, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilitieseach case, other than in the ordinary course of business consistent with past practice, or waiving(ii) in any calendar year, cancelling make any hire, when taken together with all other hires or assigning other cash compensation increases for existing employees during such year, that would result in total payroll expenses in respect of cash compensation for the Business for such year exceeding 105% of the total payroll expenses in respect of cash compensation for the Business incurred during the prior calendar year;
(m) settle or compromise any Litigation or investigation involving or against the Business, any Company or any of the Transferred Subsidiaries, except (x) for matters for which a reserve has been made in the Financial Statements (provided that such settlement, offer or proposal is not in an amount in excess of such reserve and does not include any form of non-monetary or equitable relief (other than customarily provided in settlement and release agreements)), and (y) with respect to any specific matter, a settlement that does not exceed $250,000, individually, or $1,000,000, in the aggregate, and does not involve any non-monetary or equitable relief (other than customarily provided in settlement and release agreements);
(n) initiate any Litigation in the name or on behalf of any member of the Company Group that claims damages in excess of $1,000,000;
(o) implement any layoffs implicating the WARN Act;
(p) incur, offer, place, arrange, syndicate, assume, guarantee or rights otherwise become liable for, any Indebtedness for borrowed money (directly, contingently or otherwise), other than Indebtedness which can be paid-off in full at the Closing;
(q) commit to make any future capital expenditure not made prior to Closing, except for capital expenditures that are consistent with the 2015 CapEx Budget or the capital expenditure budget for the Business adopted with respect to the 2016 fiscal year of substantial value the Company, which 2016 budget, for purposes of this paragraph, will not exceed 125% of the 2015 CapEx Budget;
(r) make any material change to any intercompany services or arrangements provided to or on behalf of the Business or any Company or Transferred Subsidiary that will continue following the Closing, other than in the ordinary course of business consistent with past practice; practices;
(xiiis) making any collect or discount accounts receivable, delay the payment of accounts payable or accrued expenses, delay the purchase of services or supplies or delay capital expenditures that are repairs or maintenance, other than in the aggregate ordinary course of business consistent with past practices;
(t) terminate, or voluntarily decline to renew any Permit material to the Business, except in excess the ordinary course of $100,000 business consistent with past practice;
(u) enter into, terminate, or make any material changes to a relationship with any supply chain management provider (including by modifying, amending or replacing existing arrangements with inbound or outbound third-party logistics providers), in each case without first consulting with Buyer with respect thereto and giving Buyer the reasonable opportunity to review and comment thereon;
(v) transfer the employment of any employee who is currently employed by a Company or a Transferred Subsidiary to a member of the Seller Group (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01Excluded Employees), emergency capital expenditures or capital expenditures that are required to maintain transfer the Business in compliance with employment of any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver employee who is member of the limitations period for the assessment of any Tax; Seller Group (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to other than the Company of more than $100,000 in aggregate, (Bor a Transferred Subsidiary) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respecta Transferred Subsidiary; or (xixw) authorizing, agreeing agree or committing or entering into a Contract commit to do any of the foregoing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Sensata Technologies Holding N.V.)
Conduct of the Business. (a) From Company will, and Sellers will cause Company to, prior to the date hereof until Closing:
(i) maintain its organizational existence;
(ii) use best efforts to preserve the Business and its business organization intact, retain its permits, licenses and franchises, preserve the existing contracts and goodwill of its customers, suppliers, patients, personnel and others having business relations with it;
(iii) conduct the Business only in the ordinary course in accordance with historical practices;
(iv) use best efforts to operate in such a manner as to assure that the representations and warranties of the Sellers set forth in this Agreement will be true and correct as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;
(v) use best efforts to enter into new Tenant Leases for the Tower Assets, which shall be approved in advance by Purchaser, in its sole discretion, as to form, content and substance; provided that Purchaser's approval of a new Tenant Lease will not be unreasonably withheld or delayed if such new Tenant Lease is in accordance with the Tenant Leasing Guidelines;
(vi) terminate all Affiliate Transactions (except for Ground Leases with the Affiliates as described in Section 3.18), such that there is no liability thereunder on the part of the Company;
(vii) cause each manager and officer of the Company to execute and deliver to Purchaser a letter of resignation, effective on the Closing Date, resigning such party as a manager or officer of the earlier termination Company ("Resignation Letter");
(viii) cause each employee of this Agreement pursuant the Company to Article IXexecute and deliver a Release and Resignation Agreement, except in the form attached hereto as Exhibit "C" (the "Release and Resignation Agreement");
(ix) acquire from TVHT LLC all right, title and interest in the assets associated with the Xxxxxxxxx tower site located on Xxxxxxxxx Boulevard in Memphis, Tennessee, so that such site shall be included in the Tower Assets at Closing. All representations, covenants and agreements of Seller as to the extent described Tower Assets shall apply to the Xxxxxxxxx site;
(x) transfer, prior to Closing, Company's fifty percent (50%) interest in Schedule 5.01 or otherwise required or specifically permitted Wolfchase Tower LLC, which owns the assets associated with the Wolfchase tower site located in Memphis, Tennessee, so that such interest in Wolfchase Tower LLC shall not be owned by this AgreementCompany at Closing;
(xi) transfer, the Company shall: (i) conduct the Business prior to Closing, all of Company's right, title and interest in the ordinary course of business consistent assets associated with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures following sites so that are required to maintain the Business in compliance with any applicable Laws), unless the Parent such interests shall have otherwise consented in writing (which consent will not be unreasonably withheldowned by Company at Closing: Atrium tower site located in Pacific Palisades, conditioned or delayed)California; (ii) maintain Smalco tower site located in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage)Myrtle, Mississippi; (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliersand Xxxxxx Creek tower site located in Batesville, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesMississippi.
(b) From the date hereof until the Closing DateCompany will not, or the earlier termination of this Agreement pursuant to Article IXand Sellers will cause Company not to, except prior to the extent described Closing, without the Purchaser's prior written consent:
(i) change its method of management or operations in Schedule 5.01 any material respect;
(ii) dispose of or otherwise required acquire any material assets or specifically permitted by this Agreement properties or consented make any commitment to in writing by the Parent (which consent will not be unreasonably withhelddo so; provided, conditioned or delayed)however, the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any will dispose of the assets of the Company listed on Section 5.6(b)(ii) of the Disclosure Schedule prior to become subject to a Lien Closing;
(other than a Permitted Lieniii) incur any Indebtedness, make any loans or sellingadvances, leasingassume, licensing guarantee or endorse or otherwise disposing become responsible for the obligation of any other Person, or subject any of its properties or assets or securitiesto any Lien, including by merger, consolidation, asset sale or other business combination, in each case other than in the ordinary course of business consistent with past practice; business;
(iv) modify, amend, cancel or terminate any Ground Lease, Tenant Lease or Related Contract or any other existing agreement or instrument material to Company or the Business;
(v) make any change in the compensation or benefit plans for any officer, director, manager, employee, agent, representative or consultant of Company, or pay or agree to pay any bonus, severance or similar payment (other than bonus payments or other amounts to which Company is committed and which are expressly disclosed in this Agreement);
(vi) promote, change the job title of, or otherwise alter in any material respect the responsibilities or duties of, any management employee or officer of Company;
(vii) making enter into any loans contract or advances toagreement with any Seller, any Affiliate of any Seller, or any investments in, any other Person (in with respect to which Company has any liability or obligation, or which may otherwise have any continuing effect after the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); Closing;
(viii) pledging or otherwise encumbering of its Company LLC Interests make any distribution, redemption, recapitalization, issuance or other Equity Interests; transaction involving the Membership Interests of the Company except for distributions for Taxes and distributions of cash to Members;
(ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making make any change in its methods of accounting or accounting practices or procedures, or make any upward revaluation of any of its assets;
(including x) make any new elections with respect to reservesTaxes or any changes in current elections with respect to Taxes affecting Company;
(xi) take any other action which could have a material adverse effect on the Business or the affairs, assets, condition (financial or otherwise) or prospects of Company or any Tax election; filing any amended Tax Return; electing or changing any method material division of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary reliefCompany, or (C) that otherwise are could adversely affect or would reasonably be expected to be material to detract from the value of Company its respective assets or the Business;
(xii) settle or otherwise satisfy in full all accounts and other obligations between Company and any Affiliate; or
(xvixiii) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoingforegoing referred to in clauses (i) - (xii).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Global Signal Inc)
Conduct of the Business. (a) From During the period from the date hereof of this Agreement and continuing until the Closing Date, or earlier of the earlier termination of this Agreement pursuant or the Closing, Seller agrees, and agrees to Article IXcause its Affiliates, to (i) conduct the Business, except to the extent described that the Buyer Parties shall otherwise consent in Schedule 5.01 or otherwise required or specifically permitted by this Agreementwriting, the Company shall: (i) conduct the Business in the ordinary course Ordinary Course of business consistent with past practice in all material respects (including with respect to capital expendituresBusiness, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect pay the insurance coverage described on Schedule 7.16 debts and Taxes of the Business when due (or reasonably equivalent replacement coveragesubject to Section 4.1(e) below); , (iii) pay or perform other obligations of the Business when due, (iv) pay any renewal fees of the Business when due and take all such other steps as may be necessary for maintaining or defending the Transferred IP and (v) preserve intact the present business organization of the Business, use its reasonable best efforts to keep available the services of the present officers and employees of the Business, and use its commercially reasonable efforts to preserve the present relationships of the Seller Parties and the Business with customers, suppliers, vendorsdistributors, licensors, and licensees of the Business, and other Persons others having business dealings with which the Business, all with the goal of preserving unimpaired the goodwill and ongoing businesses of the Business has business relations; (iv) maintain at the Closing. Seller shall promptly notify the Buyer Parties of any event or occurrence or emergency not in effect the Ordinary Course of Business and any material event involving the Seller Parties or the Business Licenses (if any) in accordance with that arises during the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between period from the date of this Agreement and continuing until the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services earlier of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the termination date hereof until the Closing Date, or the earlier termination of this Agreement pursuant or the Closing. In addition to Article IXthe foregoing, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted expressly contemplated by this Agreement, entering into except in the Ordinary Course of Business, or amending any Contract with the Manager or any officer except as expressly set forth in Section 4.1 of the Company; Disclosure Schedule, Seller shall not, and shall cause its Affiliates not to, without the prior written consent of Buyer, from and after the date of this Agreement, and only with respect to the Purchased Assets or the Business:
(xa) increasing any benefits under any Employee Benefit Plan or increasing sell inventory related to the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect Business outside of the compensation Ordinary Course of any employee whose annual base compensation does not exceed $125,000 after giving effect Business, including with respect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee pricing, discounting practices, bundling, sales volume and services levels, and will maintain inventory used by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incurBusiness sufficient to meet expected customer requirements, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waivingincluding sufficient raw materials, cancelling or assigning any claims or rights capacity and work in process in light of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached anticipated demand and customary cycle times and sufficient finished goods inventory related to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods for satisfaction of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver customer orders of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoing.Business on hand at Closing;
Appears in 1 contract
Conduct of the Business. 6.1 The Company shall maintain an independent Board of Directors, which shall set the general policy of the Company and appoint officers of the Company who shall be responsible for the general operations and activities of the Company. The Board shall appoint an Audit Committee (ato review the accounts, and work with the Auditors) From and a Compensation Committee (to set the date hereof until remuneration of the Closing Date, Executive Directors of the Board of the Company);
6.2 The Company shall recruit and employ such staff as the Board shall from time to time consider necessary for the proper conduct of the Business. If a Participant or the earlier termination VEL seconds any of this Agreement pursuant to Article IX, except its employees to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed“Seconded Personnel”), the Company shall refrain from: indemnify such Participant against all and any loss, damage, liability, cost and/or expense sustained by VEL or such Participant as the result of (i) issuing, selling any claim brought by any Seconded Personnel against the Participant as a result of any act or delivering omission of the Company and (ii) any act or omission of its any such Seconded Personnel whilst performing duties for the Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any during the secondment and/or as a result of its Company LLC Interests or other Equity Interests (or amending any term such Participant’s vicarious liability for the acts and omissions of any of such employees during their secondment.
6.3 If any Participant or VEL agrees to second personnel to the foregoing); Company, such Participant or VEL and the Company shall agree the names of the relevant employees prior to such individual’s engagement as secondees.
6.4 All the salaries, wages, allowances, travelling and accommodation expenses and other emoluments or benefits to which such Seconded Personnel may be entitled (iibeing calculated at the appropriate professional or commercial rates) effecting any recapitalization, reclassification, dividend, split and all necessary employer’s pension or like change superannuation and national insurance contributions in its capitalization other than dividends respect of the participation of such Seconded Personnel in the Business shall, except where otherwise agreed, during such secondment be borne and paid by the Company, declaring for the avoidance of doubt that where any of such expenditure has been incurred by either of the Participants or VEL the Company shall reimburse the Participant or VEL incurring such expenditure with the amount of such expenditure.
6.5 The Participant’s agree that within 30 days of Completion the Company will enter into a management services agreement with VEL and CanArgo, in terms of which VEL and/or CanArgo will provide certain management services to the ordinary course of business consistent with past practice Company on the rates set out therein.
6.6 The Company shall:
6.6.1 appoint contractors from time to time and the terms and conditions procure that any works required in respect of the Company’s Organizational DocumentsBusiness are carried out with all reasonable speed; (iii) amending its Organizational Documents; (iv) making any redemption and
6.6.2 provide or purchase procure the provision of any of its of its Company LLC Interests such additional or other Equity Interests; (v) (A) merging, consolidating supplementary professional or combining with any Person management or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies supervising or marketing services as may be reasonably expedient or necessary in the ordinary course interests of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer carrying out of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the ’s Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Assignee shall exercise reasonable commercial efforts to monetize the Assigned Patents consistent with prudent business practices; provided, however, in light of the volume, breadth and extent of the Assigned Patents, Assignee shall have the sole right in its discretion to determine the strategy, manner, timing, nature and extent of any and all actions to monetize the Assigned Patents. Assignee shall be free to employ, contract or otherwise retain the services of appropriate legal, technical, financial and administrative personnel, advisors and agents to conduct and operate its business. In addition to and without limiting the generality of the foregoing, no later than * business * following Assignee’s or its Affiliate’s commencement of any patent infringement or other litigation or arbitration to enforce one or more of the Assigned Patents, Assignee shall provide Assignor with notice of such action and, to the extent that a disclosure is permitted under applicable rules or regulations, Assignee shall provide Assignor a copy of the related complaint and initial filings.
5.4.1 It is acknowledged that (a) From Assignor has made a commitment to *** to offer licenses under certain Patents related to certain standards, to *** at certain terms and conditions, such terms and conditions including *** for certain products of such *** (the “***”), (b) the *** requires Assignor to follow a pre-defined notification process, (c) a particular *** will *** from the *** under certain pre-defined circumstances, including without limitation ***.
5.4.2 The Parties agree that in order to enable Assignor to fulfill the *** and to clarify to the Assignee the extent of the Existing Encumbrances regarding particular companies, the Parties will cooperate in the following manner: Upon written request from the Assignee, the Assignor will, within * (*) days from the date hereof until of the Closing Datewritten request, or provide the Assignee with information whether a particular company is still subject to the ***. Assignee agrees (a) that it will *** that have *** from the *** for licensing of *** and/or *** under any of the Assigned Patents that are subject to the *** before notifying Assignor so as to enable Assignor to follow the required notification process under the *** and (b) not to *** subject to the *** to * with Assignor’s licensing activities pursuant to the *** regarding such a company as long as such company continues to benefit from the ***. If a company earlier termination identified pursuant to the second sentence of this Section 5.4.2 that has *** from the *** under the ***, Assignor will provide Assignee with written notice of the agreement within * (*) days of the effective date of such ***. *Please note parts of this Agreement are designated with an asterisk which indicates that material has been omitted and filed separately with the Securities and Exchange Commission pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees a request for confidential treatment.
5.4.3 Provided a company is still subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value *** as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented Section 5.4.2 above, if a company wishes to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options enter into a license agreement with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the * on terms and conditions of compliant with the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging***, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company * will * to become *** under those Assigned Patents that are subject to the *** which will allow * to * a Lien (other than license to such a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans company on terms and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract conditions that are compliant with the Manager or any officer ***. For the avoidance of doubt it is acknowledged and agreed that the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, foregoing *** are not subject to any employee, officer, manager further consideration or consultant of Company (other than (A) any increase adopted in accounting by the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant Assignor to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingAssignee.
Appears in 1 contract
Samples: Patent Purchase Agreement (Inventergy Global, Inc.)
Conduct of the Business. (a) From Operation in Ordinary Course of Business. Except as set forth in Schedule 8.2, from the date of this Agreement until the Closing or earlier termination of this Agreement, Seller shall conduct the Business in the Ordinary Course of Business, including (i) maintaining the inventories of FF&E, Supplies, F&B and Retail Merchandise at levels maintained in the Ordinary Course of Business; (ii) performing maintenance and repairs for the Real Property and tangible Personal Property in the Ordinary Course of Business; (iii) maintaining insurance coverages consistent at such point in time in accordance with Starwood’s risk management policies for its managed hotels substantially similar to the Hotel and consistent with the Hotel’s location; and (iv) renewing of Licenses and Permits. Seller agrees to provide Purchaser with (i) monthly reports relating to the ownership and operation of the Hotel to the extent and in the manner done in the Ordinary Course of Business, it being understood and agreed that such monthly reports shall include those reports set forth on Schedule 8.2(a) to this Agreement in substantially the form previously delivered to Purchaser (or such other commercially reasonable form as Seller may hereafter adopt with respect to such reports), and (ii) copies of all material written notices received by Seller relating to the ownership or operation of the Hotel, including those received by Seller under the Management Agreement. Seller also agrees (and agrees to cause Manager, subject to the terms of the Management Agreement) to have monthly meetings (telephonically or in person as reasonably and mutually agreed by Purchaser and Seller) with Purchaser to provide Purchaser with updates regarding the ownership and operation of the Hotel and the Business. Purchaser shall have the right, from the date hereof through the Closing Date, at Purchaser’s option, to solicit estoppel certificates in form and substance reasonably satisfactory to Purchaser for: (A) the manager under the Parking Management Agreement, and (B) the tenants under Tenant Leases; provided, that (x) Purchaser shall provide prior notice thereof to Seller, and Seller shall have the right (but not the obligation) to itself solicit (rather than Purchaser) such estoppel certificates from said parking manager or tenants, (y) whether Purchaser obtains or does not obtain any such estoppel certificates shall not be a condition to Purchaser’s obligations hereunder, and (z) Purchaser shall not solicit (or request that Seller solicit) any such estoppel certificate from any single tenant under a Tenant Lease or the manager under the Parking Management Agreement on more than one (1) occasion during the period from the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws)Closing, unless the Parent Closing Date is more than one hundred ten (110) days after the date hereof, in which event Purchaser shall have otherwise consented in writing the right, after the one hundred tenth (which consent will not be unreasonably withheld, conditioned or delayed); (ii110th) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between day after the date of this Agreement and hereof, to request one (1) additional updated estoppel certificate from any such tenant or the Closing; (v) use its commercially reasonable efforts parking manager. In the event that Seller elects to keepsolicit said estoppel certificates from the parking manager and/or tenants, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) Seller shall use commercially reasonable efforts to preserve intact its business organizationobtain and deliver to Purchaser any such requested estoppel certificates within fifteen (15) Business Days after delivery of any such estoppel certificates by Purchaser to Seller. Seller hereby covenants and agrees to obtain, value as a going concern at Seller’s sole cost and relationships with third parties (including lessorsexpense, licensors, suppliers, distributors any and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement all consents from tenants pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures Tenant Leases that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect assign such Tenant Leases to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Westin Hotels LTD Partnership)
Conduct of the Business. (a) From the date hereof Effective Date until the earlier to occur of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXVII, except to the extent described in Schedule 5.01 or as otherwise expressly required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent Purchaser shall have otherwise consented in writing (which such consent will not to be unreasonably withheld, conditioned or delayed); , the Company shall, and shall cause OCW and OCW’s Subsidiaries to:
(i) conduct OCW’s or OCW’s Subsidiary’s business as currently conducted, including its cash management customs and practices (including the collection of receivables and payment of payables) and billing, marketing, sales and discount practices, in each case only in the ordinary course of business;
(ii) maintain notify the Purchaser within 48 hours in effect the insurance coverage event that (A) any Material Customer of OCW or OCW’s Subsidiaries indicates that it intends to discontinue or change the terms of any relationship with OCW or any of OCW’s Subsidiaries, (B) any Material Customer of OCW or OCW’s Subsidiaries gives notice of any significant dispute with respect to any Material Contract, or (C) the Company, OCW or any of OCW’s Subsidiaries becomes aware of facts or circumstances by virtue of which the Company, OCW or any of its Subsidiaries has reason to believe that any Material Customer would reasonably be expected to take the actions described on Schedule 7.16 in the foregoing clauses (A) or reasonably equivalent replacement coverage(B); ;
(iii) maintain their properties and assets in substantially the same condition as of the date of this Agreement, ordinary wear and tear excepted, including its present operations, physical facilities and working conditions;
(iv) use its commercially reasonable efforts to preserve the present relationships with all customers and suppliers, lessors, licensors and employees of the Business with suppliersCompany, vendors, licensees OCW and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; OCW’s Subsidiaries;
(v) use keep in full force and effect its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and corporate existence;
(vi) maintain the existence of and use commercially reasonable efforts to preserve intact its business organizationprotect all OCW Intellectual Property;
(vii) pay all Taxes as such Taxes become due and payable;
(viii) continue in force with good and responsible insurance companies, value adequate insurance for the Company, OCW and OCW’s Subsidiaries with respect to such risks of such types and such amounts as a going concern and relationships are customary for entities of similar size engaged in similar lines of business; and
(ix) comply in all material respects with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesall applicable Laws.
(b) From the date hereof Effective Date until the earlier to occur of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXVII, except to the extent described in Schedule 5.01 or as otherwise expressly required or specifically permitted by this Agreement or and as set forth on Schedule 6.01(b), unless the Purchaser shall have otherwise consented to in writing by the Parent (which such consent will not to be unreasonably withheld, conditioned or delayed), the Company shall refrain from: not, and shall cause OCW and OCW’s Subsidiaries not to:
(i) issuingissue, selling sell or delivering redeem any of its the equity interests in the Company, OCW and OCW’s Subsidiaries (other than upon the exercise by the Company LLC Interests or other Equity Interests OCW’s of any contractual repurchase rights);
(ii) issue or issuing or selling sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe forfor any equity interest in the Company, any of its Company LLC Interests or other Equity Interests OCW and OCW’s Subsidiaries;
(or amending any term of any of the foregoing); (iiiii) effecting effect any recapitalization, reclassification, dividend, split or like change in the Company’s, OCW’s and OCW’s Subsidiaries’ capitalization;
(iv) amend the articles of organization, bylaws, or equivalent governing documents of the Company, OCW, or any OCW Subsidiary;
(A) materially increase the compensation or materially expand the benefits of any employees of OCW and its capitalization Subsidiaries; (B) grant any material bonus, benefit, severance or termination pay to any employee of OCW and its Subsidiaries; (C) loan or advance any money or other property to any employee of OCW and its Subsidiaries other than dividends in the employee advances for expenses in the ordinary course of business consistent with past practice and business; or (D) materially increase the terms and conditions coverage or benefits available under, establish, adopt, enter into, materially amend or terminate any employee benefit plan;
(vi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company, OCW or OCW’s Organizational Documents; Subsidiaries;
(iiivii) amending its Organizational Documents; (iv) making any redemption invest in, make a loan, advance or purchase capital contribution to, or otherwise acquire the securities or a substantial portion of the assets, of any other Person;
(viii) materially change or modify the Company’s, OCW’s and OCW’s Subsidiaries’ cash management customs and practices (including the collection of its receivables and payment of its Company LLC Interests payables), and billing, marketing, sales and discount practices;
(ix) issue any note, bond, or other Equity Interests; debt security or create, incur, assume, or guarantee any Indebtedness for borrowed money or capitalized lease obligation, in each case involving more than $20,000 in the aggregate;
(vx) enter into, amend, modify, extend, renew or terminate any Lease;
(Axi) mergingchange the fiscal year of the Company, consolidating or combining with OCW and OCW’s Subsidiaries;
(xii) make any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in capital expenditure capital expenditure outside the ordinary course of business consistent with past practice; or in excess of $100,000 in the aggregate;
(vixiii) permitting enter into, accelerate, terminate or cancel, or materially modify, any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combinationMaterial Contract, other than in the ordinary course of business consistent business;
(xiv) introduce any material change with past practice; (vii) making respect to the operation of OCW and/or its Subsidiaries, including any loans or advances to, or any investments in, any other Person (material change in the case of loans types, nature or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer composition of the Company; (x) increasing any benefits under any Employee Benefit Plan products or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant services of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material LiabilitiesOCW and its Subsidiaries, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value business;
(xv) other than in the ordinary course of business consistent with past practice; (xiii) making business, enter into any capital expenditures that are in Material Contract or amend or cause the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment termination of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary reliefMaterial Contract, or (C) that otherwise are grant any release or would reasonably be expected to be material to the Company or the Business; relinquishment of any rights under any Contract;
(xvi) entering intoinstitute, adoptsettle, terminate, modify, renew cancel or amend in compromise any material respect (including by accelerating action, claim or lawsuit of or affecting the Company, OCW and OCW’s Subsidiaries, or intentionally waive or release rights to any material rights action, claim or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; lawsuit;
(xvii) writing up make a material change in the Company’s, OCW’s or writing down any of its material assets of the Company OCW’s Subsidiaries’ accounting or revalue its inventory Tax election principles, methods or reserves in respect of its accounts receivablepolicies; or
(xviii) taking hire any action additional employees or failing to take engage any action that would result additional independent contractors or alter or modify the compensation or benefits of such individuals in any effect as of the representations Effective Date and warranties as set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingDisclosure Schedule.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: , and shall cause its Subsidiaries to, use commercially reasonable efforts to (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees Subsidiaries’ businesses in the ordinary course of business consistent with past practice and (viii) use commercially reasonable efforts to maintain and preserve intact its business organizationbusiness, value as a going concern material assets and properties and the present commercial relationships with third parties its officers, employees, suppliers and customers with whom it does business, except (including lessorsA) as otherwise expressly required or expressly contemplated by this Agreement, licensors(B) in connection with the Reorganization, suppliersto the extent performed in accordance with the Reorganization Plan, distributors (C) as set forth on Annex 7.01(b), (D) with respect to the conduct of the Specified Contract Business, which shall not be subject to the obligations of this Section 7.01, provided that such conduct does not adversely impact the other businesses, operations or financial condition of the Company and customersits Subsidiaries and Joint Ventures or (E) and employeesas consented to in writing (email being sufficient) by Parent (such consent not to be unreasonably withheld, delayed or conditioned); provided that if Parent does not provide written confirmation of receipt of the Company’s written request therefor (an email being sufficient) within five (5) Business Days, then such consent will be deemed to have been provided.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IXAgreement, except (A) as otherwise expressly required or expressly contemplated by this Agreement, (B) in connection with the Reorganization, to the extent described performed in Schedule 5.01 accordance with the Reorganization Plan and (C) as set forth on Annex 7.01(b) or otherwise required or specifically permitted by this Agreement or as consented to in writing by the Parent (which such consent will not to be unreasonably withheld, conditioned delayed or delayedconditioned); provided that if Parent does not provide written confirmation of receipt of the Company’s written request therefor (an email being sufficient) within five (5) Business Days, then such consent will be deemed to have been provided and except with respect to the conduct of the Specified Contract Business, which shall not be subject to the obligations of this Section 7.01; provided that such conduct does not adversely impact the other businesses, operations or financial condition of the Company and its Subsidiaries, the Company shall refrain from: not, and shall cause each of its Subsidiaries not to:
(i) issuing, selling (A) amend or delivering propose to amend the respective Governing Documents of the Company or any of its Company LLC Interests Subsidiaries or Joint Ventures in any manner or (B) split, combine or reclassify the capital stock or other Equity Interests Securities of the Company or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company Subsidiaries, in each case, except as may be required in connection with the conversion of any Preferred Units into Common Units in accordance with the terms of the LLC Interests Agreement as in effect on the date hereof;
(ii) issue, sell, pledge, transfer or dispose of, or agree to issue, sell, pledge, transfer or dispose of, any shares of capital stock or other Equity Interests Securities of the Company or any of its Subsidiaries or Joint Ventures or issue any shares of capital stock or Equity Securities of any class or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital stock or other Equity Securities of the Company or any of its Subsidiaries or Joint Ventures (other than this Agreement and the agreements contemplated hereby), or grant any unit appreciation or similar rights, in each case, except as may be required in connection with the conversion of any Preferred Units into Common Units in accordance with the terms of the LLC Agreement as in effect on the date hereof or in the ordinary course;
(iii) redeem, purchase or otherwise acquire any outstanding shares of capital stock or other Equity Securities of the Company or any of its Subsidiaries or Joint Ventures or declare or pay any non-cash dividend or make any other non-cash distribution to any Person other than the Company or one (1) or more of its Subsidiaries on or prior to the Closing Date, in each case, except as may be required in connection with the conversion of any Preferred Units into Common Units in accordance with the terms of the LLC Agreement as in effect on the date hereof;
(iv) (A) enter into any collective bargaining agreement or any similar agreement with a union, trade union, works council, employee representative body or other similar labor organization applicable to any Company Employees, (B) grant to any Company Employee any material change in compensation, except (x) for pay increases, promotions, and bonuses made in the ordinary course of business for any Company Employee whose base compensation is less than $[***], (y) as may be required by applicable Law or the terms of any Plan or other contract or (z) in connection with annual renewals of any health or welfare plans, (C) materially amend, terminate, adopt or establish any Plan (or amending any term arrangement that would constitute a Plan, if adopted), except (x) to the extent required by Law or the terms of any Plan or contract or (y) as would not be material and would be in the ordinary course of business or (D) hire or terminate the employment of any Company Employee whose base compensation equals or exceeds $[***], other than terminations for cause;
(v) sell, lease, transfer, or otherwise dispose of, any material property or material assets owned or leased by the Company or any of its Subsidiaries, except for (A) the sale, lease, licensing, transfer or disposition of inventory or obsolete machinery, equipment, or other assets in the ordinary course of business and (B) as to the Leased Real Property, the exercise of the foregoing); (ii) effecting Company’s or any recapitalizationof its Subsidiaries’ rights and remedies under any Lease, reclassification, dividend, split or like change in its capitalization other than dividends in the ordinary course of business, including any expiration, termination, renewal, expansions, reductions or similar rights as to such Leased Real Property;
(vi) abandon, fail to maintain, or allow to lapse any material Company IP or otherwise knowingly take any action that would result in any loss, lapse, abandonment, invalidity, unenforceability, or other failure to maintain any material Company IP, except in each case for the lapse or expiration of any Company IP at the end of its applicable statutory term (where such statutory term cannot be continued, renewed, or otherwise extended);
(vii) sell, transfer, license, or otherwise dispose of any material Company IP, except for non-exclusive licenses to the Company IP granted by the Company or the applicable Subsidiary in the ordinary course of business consistent with the Company’s or the applicable Subsidiary’s past practice practices;
(viii) enter into, participate in, establish, or join any SIG;
(ix) except for amendments in the ordinary course of business, amend or terminate (except for a termination resulting from the expiration of a contract in accordance with its terms) any Material Contract, Current Government Contract, or Current Government Bid;
(x) acquire any business or Person, by merger or consolidation, purchase of assets or Equity Securities, or by any other manner, in a single transaction or a series of related transactions, or otherwise acquire or license any assets or properties outside of the ordinary course of business that are material to the Company and its Subsidiaries taken as a whole;
(xi) except in accordance with the terms capital budget of the Company and conditions its Subsidiaries, a copy of which has been made available to Parent, commit or authorize any commitment to make any capital expenditures in excess of $[***] in the aggregate;
(xii) make any change in any method of accounting or auditing practice, including any changes in accounting practices or procedures relating to Working Capital, other than changes required as a result of changes in GAAP or applicable Law;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions by the Company or any of its Subsidiaries (A) to any Subsidiary of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring to any material assetsemployee in connection with travel, except for acquisitions of inventory, equipment and supplies entertainment or related business expenses or other customary out-of-pocket expenses in the ordinary course of business consistent with past practice; or (viC) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent to any customer, distributor, licensor, supplier or other Person with past practice; (vii) making any loans or advances to, which the Company or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; Subsidiaries has significant business relations;
(ixxiv) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (xA) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company make (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incurchange any material Tax election, assume (B) change any annual Tax accounting period or any method of Tax accounting, unless otherwise become liable required by applicable Law, (C) enter into any “closing agreement” (as defined in Section 7121 of the Code) with any taxing authority with respect to any amount of Taxes, (D) settle any claim or assessment in respect of a material amount of Tax, (E) amend any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness income or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing , (F) surrender any right to claim a material Tax refund or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting (G) consent to any extension or waiver of the limitations period for the assessment of applicable to any Tax; Tax claim or assessment;
(xv) settlingcancel or terminate any material Insurance Policy;
(xvi) institute or settle any material proceeding, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims other than (A) ordinary course collection matters or matters involving potential payments the payment with respect to such matter of $[***] or less by or to the Company of more than $100,000 in aggregateor its Subsidiaries, (B) that admit Liability or consent to non-monetary relief, the Settled Matter (including the payment of all amounts outstanding under the Settlement) or (C) that otherwise are or would reasonably be expected to be material to any matters settled by the Company or its Subsidiaries solely for monetary compensation of $[***] or less and is fully paid by the BusinessCompany or its Subsidiaries in cash prior to Closing or which such amount owed in such settlement is otherwise included in the calculation of Closing Working Capital; provided, that each such settlement (xvi1) entering intodoes not include a finding or admission of Liability, adopt, terminate, modify, renew violation of Law or amend in violation of the rights of any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments Person by the Company of less than $10,000 per month any of its Subsidiaries and that can be terminated by (2) provides for the unconditional release of the Company upon 60 days’ or less notice without penalty; and its Subsidiaries from all Liabilities and obligations in connection with such proceeding;
(xvii) writing up waive or writing down release any of its material assets of the Company right or revalue its inventory or reserves in respect of its accounts receivable; material claim against a third Person;
(xviii) taking adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(xix) create, incur, assume or guarantee any action debt for borrowed money outside of the ordinary course of business involving more than $[***] in the aggregate, except for borrowing from banks (or failing similar financial institutions) reasonably necessary to fund capital expenditures or working capital in a manner consistent with the Company’s budget for capital expenditures and ordinary working capital requirements (a copy of which has been made available to Parent) including, for the avoidance of doubt, borrowings under the Company’s Credit Agreements existing as of the date hereof;
(xx) amend, modify or otherwise change the Company Option Plan or the terms of any Option or, except to the extent expressly required pursuant to the terms of the applicable Option or Company Option Plan, cause the accelerated vesting of any Options; and
(xxi) authorize, or commit or agree to take any action described in clauses (i) through (xx) of this Section 7.01(b).
(c) Notwithstanding anything to the contrary herein, neither Xxxxxx’s nor Xxxxxx Sub’s consent shall be required with respect to any matter to the extent that the requirement of such consent (or the failure to take such action in the absence of such consent) would result violate applicable Law. Notwithstanding anything to the contrary in any this Section 7.01(c), the Company and its Subsidiaries may use all available Cash to make Cash dividends or distributions or pay Transaction Expenses or Indebtedness of the representations Company and warranties set forth its Subsidiaries, in this Agreement becoming false or inaccurate in any material respect; or each case, so long as (xix1) authorizingsuch use of Cash does not and following the Closing, agreeing or committing or entering into a Contract to do any is not reasonably expected to, interfere with the operation of the foregoingCompany and its Subsidiaries in the ordinary course, consistent with past practice, (2) such dividends or distributions are declared, set aside and paid solely in cash and (3) the payment of such Cash is completed prior to the Measurement Time and reflected in full in the Closing Statement.
(d) Prior to the Closing, the Company shall use commercially reasonable efforts to cause any Person that holds shares of any Indian Subsidiary and that is not a Subsidiary of the Company to execute and deliver an undated share transfer form to enable the transfer of such shares to a Person designated by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cognizant Technology Solutions Corp)
Conduct of the Business. (a) From the date hereof until through the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) Sellers shall conduct the Business in the ordinary course of business consistent with past practice in and use all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve intact the present business organization, goodwill and relationships with third parties of the Business with suppliersBusiness, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, keep available the services of the Business Employees subject to present employees of the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) Business. From the date hereof until through the Closing DateClosing, or each Seller shall:
6.1.1 use all reasonable efforts to maintain the earlier termination Purchased Assets in substantially the state of this Agreement pursuant to Article IXrepair, except to order and condition as on the extent described in Schedule 5.01 date hereof (reasonable wear and tear excepted);
6.1.2 not sell, lease, license or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: dispose of any Purchased Asset except (i) issuing, selling pursuant to existing contracts or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); commitments and (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any ;
6.1.3 not allow the inventory of supplies, drugs and other disposable goods in the Business to be materially depleted from their levels as of the assets date hereof;
6.1.4 not change any collection practices with respect to Accounts Receivable or write off any Accounts Receivable disclosed on the Balance Sheet, except as may be required in accordance with GAAP;
6.1.5 not increase the level of accounts payable or trade payables beyond the Company to become subject to a Lien (other than a Permitted Lien) or sellinglevel disclosed on the Balance Sheet, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than except in the ordinary course of business consistent with the past practice; (vii) making any loans practices;
6.1.6 use all reasonable efforts to maintain in full force and effect, without qualification or advances tolimitation, all Permits currently in effect with respect to the Business;
6.1.7 maintain in full force and effect the insurance policies and binders currently in effect with respect to the Business;
6.1.8 cause to be paid when due, all accounts payable, trade payables, Taxes, assessments and charges or levies imposed upon it with respect to or on the Business or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan Purchased Assets or increasing the compensation payable or paid, whether conditionally or otherwise, which it is required to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilitieswithhold and pay over, other than any which it may contest in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to good faith;
6.1.9 not take any action that which would result in adversely affect their title to any of the representations and warranties set forth in this Agreement becoming false Purchased Assets; and
6.1.10 agree or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. (a) From Sellers and Purchaser acknowledge and agree that Purchaser will act as Sellers’ exclusive agent for the date hereof until the Closing Date, or the earlier termination purposes of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business conducting sales in the ordinary course of business consistent in the Designation Rights Stores pursuant to the terms of the Agency Agreement; provided that, for the avoidance of doubt, except (i) as may be required by the terms of this Agreement, (ii) as may be required, authorized or restricted pursuant to the Bankruptcy Code, pursuant to an Order of the Bankruptcy Court upon motion by Sellers with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing Purchaser’s consent (which consent will shall not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between of any Cash Collateral Order or (iii) as otherwise agreed to in writing by Purchaser (including, without limitation, pursuant to the Agency Agreement), from the date of this Agreement and hereof until the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services end of the Business Employees subject Designation Rights Period, Sellers shall not undertake or permit (x) any extraordinary discounting of Inventory or (y) any other material change to the normal hiring use, occupancy, maintenance and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties operation (including lessors, licensors, suppliers, distributors and customershours of operation) and employeesof the Designation Rights Properties.
(b) From Without limiting (i) the date hereof until generality of the Closing Dateforegoing or (ii) the obligations of the JV Agent or Purchaser under the Agency Agreement, Sellers shall pay when due any and all, and shall perform all maintenance and other obligations encompassed by, Occupancy Expenses and Distribution Center Expenses, as applicable, with respect to each Designation Rights Property and the related Lease solely to the extent arising during the period commencing on the Petition Date through the end of the Designation Rights Period at such times, to such extent or standard, and in such amounts as are required under the earlier termination terms of the applicable Lease and any other applicable agreement pertaining to such Designation Rights Property or Lease; provided that Sellers shall be entitled to reimbursement for such Occupancy Expenses from the Purchaser and the JV Agent as and to the extent provided in Section 4 of the Agency Agreement and Section 2.3(b) hereof. Sellers shall not pay any amount due from Sellers pursuant to any provision of this Agreement pursuant to Article IXusing any security deposit associated with any Designation Rights Asset, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests Lease or other Equity Interests or issuing or selling any securities convertible intorelated Potential Assigned Agreement. For the avoidance of doubt, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all no such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice post-Petition Date obligations in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) Leases or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably other Potential Assigned Agreements shall be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in considered Cure Costs under this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingAgreement.
Appears in 1 contract
Conduct of the Business. (a) From During the date hereof period from the Agreement Date and continuing until the Closing Date, or earlier of the earlier termination of this Agreement pursuant to Article IX, and the Effective Time (except to the extent described expressly provided otherwise in Schedule 5.01 this Agreement or otherwise required or specifically permitted by this Agreement, the with express prior written consent of Acquiror):
(a) Parent and Company shall: , and shall cause each member of the Parent Group (ias applicable, solely with respect to the Business) to, conduct the Business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquiror) and in compliance with all applicable Legal Requirements;
(b) Company shall and Parent shall and shall cause each member of the Parent Group to (as applicable, solely with respect to any Business Asset) (A) other than as set forth in Section 4.2, pay all debts and Taxes of Company and the Business when due, subject to good faith disputes over such debts or Taxes, (B) other than as set forth in Section 4.2, pay or perform other obligations of Company or the Business when due, (C) use reasonable efforts consistent with past practice and policies to collect accounts receivable of Company when due and not extend credit outside of the ordinary course of business consistent with past practice in all material respects practices, (including D) sell Company products consistent with respect past practices as to capital expenditureslicense, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws)service and maintenance terms, unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheldincentive programs, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof GAAP requirements as to revenue recognition, and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (vE) use its commercially reasonable efforts consistent with past practice and policies to keeppreserve intact its present business organizations, or to cause Spoonful to keep, keep available the services of the Business Employees subject its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having material business dealings with it, to the normal hiring end that its goodwill and firing ongoing businesses shall be unimpaired at the Closing;
(c) Parent or Company shall promptly notify Acquiror of Business Employees any change, occurrence or event not in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing DateBusiness, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalizationchange, reclassificationoccurrence or event which, dividend, split individually or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settlingother changes, agreeing to settleoccurrences and events, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material materially adverse to the Parent, Company or the Business; (xvi) entering into, adopt, terminate, modify, renew Business taken together or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in cause any of the representations and warranties conditions to closing set forth in this Agreement becoming false or inaccurate in any material respect; or ARTICLE 6 not to be satisfied;
(xixd) authorizingParent and Company shall, agreeing or committing or entering into a Contract to do any and shall cause each member of the foregoingParent Group to, assure that each of its Contracts related to the Business entered into after the Agreement Date will not require the procurement of any consent, waiver or novation or provide for any change in the obligations of any party in connection with, or terminate as a result of the consummation of, the Mergers, and shall give reasonable advance notice to Acquiror prior to allowing any Material Contract or right thereunder to lapse or terminate by its terms; and
(e) Parent and Company shall maintain each of its leased premises in accordance with the terms of the applicable lease.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Glu Mobile Inc)
Conduct of the Business. Seller and Guarantor will cause each Company to observe the following provisions to and including the Closing Date:
(a) From each Company will conduct its business only in, and none of the Companies will take any action except in, the Ordinary Course of Business and in accordance with applicable Law, except with the prior written consent of Parent;
(b) none of the Companies 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 hereof until of this Agreement, except with the prior written consent of Parent;
(c) each Company will (i) use its reasonable efforts to preserve its assets, business organization and goodwill, keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, suppliers and others having business relationships with it, (ii), subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer Parties to report operational matters and the general status of ongoing operations as requested by Buyer Parties and (iii) not take any action that would render, or that reasonably may be expected to render, any representation or warranty made by Seller or Guarantor in this Agreement untrue at the Closing Date, or as though then made and as though the earlier termination Closing Date had been substituted for the date of this Agreement pursuant in such representation or warranty, including any actions referred to Article IXin Section 4.8;
(d) except with the prior written consent of Parent or in the Ordinary Course of Business, except none of the Companies will use extraordinary selling efforts that would have the effect of accelerating sales prior to the extent described in Schedule 5.01 time reasonably expected, through offering of discounts, shipment of goods prior to anticipated shipping dates or otherwise required or specifically permitted by this Agreementotherwise;
(e) except with the prior written consent of Parent, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent which shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned none of the Companies will (i) make or delayed); rescind any express or deemed election or take any other discretionary position relating to Taxes except in accordance with past practice, (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); amend any Return, (iii) use its commercially reasonable efforts settle or compromise any Litigation relating to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; Taxes or (iv) maintain 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 last filed federal or state income Tax Returns;
(f) none of the Companies will change any of its methods of accounting in effect on the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing March Balance Sheet Date, other than changes required by Law or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement GAAP or consented to in writing by Parent;
(g) except with the Parent (which prior written consent of Parent, none of the Companies will not be unreasonably withheld, conditioned cancel or delayed), the Company shall refrain from: (i) issuing, selling or delivering terminate any of its Company LLC Interests current insurance policies or other Equity Interests reclamation or issuing or selling any securities convertible intosurety bonds, or options allow any of the coverage thereunder to lapse, unless simultaneously with respect tosuch termination, cancellation or warrants lapse replacement policies providing coverage equal to purchase or rights greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(h) except in the Ordinary Course of Business, none of the Companies will repay any indebtedness to subscribe for, Guarantor or any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances toSubsidiaries, or will declare, set aside or pay any investments in, cash dividends on or make any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable cash distributions in respect of any guarantee capital stock; and
(other than a guarantee by i) except with the Company prior written consent of a Liability Parent, none of the Company that is made Companies will declare, set aside or pay any non-cash dividends on or make any other non-cash distributions (whether in the ordinary course of business consistent with past practicestock, equity securities or property) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repayingcapital stock or split, prepaying combine or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making reclassify any capital expenditures that are in stock or issue or authorize the aggregate in excess issuance of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim securities in respect of, in lieu of Taxes; or consenting to in substitution for any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingcapital stock.
Appears in 1 contract
Conduct of the Business. (a) From Except as set forth on Schedule 6.1, hereof, the Parent will, and will cause each of its Subsidiaries to, observe each term set forth in this Section 6.1 and agrees that, from the date hereof until the Closing DateEffective Time, unless otherwise consented to by the Company (which consent shall not be unreasonably withheld or delayed):
(a) The business of the earlier termination of this Agreement pursuant to Article IXParent and its Subsidiaries shall be conducted only in, and the Parent and its Subsidiaries shall not take any action except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreementin, the Company shall: ordinary course of their respective businesses and in accordance in all material respects with all applicable laws, rules and regulations and their past custom and practice;
(b) The Parent and its Subsidiaries shall not, directly or indirectly, do any of the following:
(i) conduct the Business sell, pledge, dispose of or encumber any of its Material assets, except in the ordinary course of business consistent with past practice in all material respects business;
(including ii) declare or make any distributions or pay any dividends with respect to its capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed)stock; (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); or
(iii) use authorize any of, or commit or agree to take any of, the foregoing actions.
(c) The Parent will, and will cause each of its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; Subsidiaries to:
(iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (vi) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use all commercially reasonable efforts to preserve intact the business organization and goodwill of the Parent and its business organizationSubsidiaries, value keep available the services of their respective officers and employees as a going concern group and maintain satisfactory relationships with third parties (including lessors, licensors, suppliers, distributors distributors, customers and customers) and employees.others having business relationships with the Parent;
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent confer on a regular and frequent basis with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets representatives of the Company to become subject to a Lien report operational matters and the general status of ongoing operations;
(other than a Permitted Lieniii) or selling, leasing, licensing or otherwise disposing of not intentionally take any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances toaction which would render, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would which reasonably may be expected to be material to the Company render, any representation or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including warranty made by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth them in this Agreement becoming false or inaccurate untrue at the Closing;
(iv) cooperate with the Company in any material respectfinalizing and communicating to the Parent's employees severance, retention and transition arrangements; or and
(xixv) authorizing, agreeing or committing or entering into use its reasonable best efforts to cause the Merger to qualify for a Contract to do any reorganization under Section 368(c) of the foregoingCode.
Appears in 1 contract
Conduct of the Business. Unless otherwise approved in writing by the Buyer or set forth in Section 4.1 of the Company Disclosure Schedule, the Company will comply with, and will cause each of the Subsidiaries to comply with, the following covenants until the earlier of the Effective Time and the termination of this Agreement.
(a) From The Company will, and will cause each of the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: Subsidiaries to:
(i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); its legal existence;
(ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its all commercially reasonable efforts to preserve the present relationships Business and its business organization intact, retain its licenses, permits, authorizations, franchises and certifications, and preserve the existing contracts and goodwill of the Business with its customers, suppliers, vendors, licensees service providers, personnel and other Persons others having business relations with which the Business has business relations; it;
(iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (viii) use its all commercially reasonable efforts to keep, or to cause Spoonful to keep, keep available the services of the Business present Employees subject to the normal hiring and firing consultants and independent contractors engaged on active projects, in each case in accordance with past practice, it being understood that termination of Business Employees Employees, consultants and independent contractors with poor performance or for cause shall not constitute a violation of this covenant;
(iv) conduct its business only in the ordinary course (including the collection of business consistent with past practice receivables and (vithe payment of payables and capital expenditures) and use commercially reasonable efforts to preserve intact its business organizationduly and timely file all Tax Returns or reports required to be filed with the applicable tax authorities and promptly pay all Taxes, value as a going concern assessments and relationships with third parties governmental charges levied or assessed upon them or any of their properties (including lessors, licensors, suppliers, distributors unless contesting the same in good faith and customers) and employees.adequate provision has been made therefor);
(bv) From keep in effect casualty, public liability, worker’s compensation and other insurance policies in coverage amounts not less than those in effect on the date hereof until Agreement Date;
(vi) use all commercially reasonable efforts to preserve and protect the Closing DateCompany Intellectual Property, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), provided that the Company shall refrain from: (i) issuingnot be required to make any filings, selling registrations or delivering take any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options prosecution actions with respect to, or warrants to purchase or rights to subscribe for, any of its such Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies Intellectual Property that it would not take in the ordinary course of business consistent with past practice; and
(vivii) permitting any of use all commercially reasonable efforts to operate in such a manner as to assure that the assets representations and warranties of the Company and the Subsidiaries set forth in this Agreement will be true and correct as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date.
(b) The Company will not, and will cause each of the Subsidiaries to become subject to a Lien not:
(other than a Permitted Lieni) change its method of management or selling, leasing, licensing or otherwise disposing of operations in any assets or securities, including by merger, consolidation, asset sale or other business combinationmaterial respect, other than in the ordinary course of business and consistent with past practice; practices;
(viiii) making dispose, acquire or license any loans assets or advances toproperties, or make any investments incommitment to do so, any other Person (than in the case ordinary course of loans business;
(A) incur any obligation or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (liability other than (A1) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (2) for Transaction Expenses, (B) incur any increase in benefits indebtedness for borrowed money, make any loans or compensation required by Law advances, or required pursuant to assume, guarantee or endorse or otherwise become responsible for the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect obligation of any guarantee other Person, or (C) subject any of its properties or assets to any Lien other than a guarantee by the Company of a Liability of the Company that is made Permitted Liens, in each case other than in the ordinary course of business consistent with past practicebusiness;
(iv) prepay any Change in Control Payments;
(v) modify, amend, cancel or incurterminate any Material Contract, assume other than the addition of optional addendums to alliance and joint marketing agreements in the ordinary course of business, or any Company Benefit Plan;
(vi) make any change in the compensation paid or payable to any Employee, manager, agent, representative or consultant as shown or required to be shown on Schedule 2.21(a) of the Company Disclosure Schedule or make any material change in the fringe benefits of any Employee;
(vii) promote, change the job title of, or otherwise become liable alter in any material respect of the responsibilities or duties of, any Indebtedness; Company management or Employee;
(xiiviii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, sponsorship, advertising, merchant program or waivingother similar contracts, cancelling agreements, or assigning obligations which may not be cancelled without penalties by the Company upon notice of 30 days or less;
(ix) (A) sell, assign, lease, terminate, abandon, transfer or otherwise dispose of or grant any claims security interest in and to any item of Company Intellectual Property, in whole or rights in part, (B) grant any exclusive license with respect to any Company Owned Intellectual Property, (C) develop, create or invent any Intellectual Property jointly with any third party, unless such Intellectual Property is subject to a Contract which provides for the ownership of substantial value other than such Intellectual Property to the Company, (D) disclose, or allow to be disclosed, any confidential Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof or (E) allow any Company Owned Intellectual Property owned by the Company to become abandoned, dedicated, disclaimed, or lapse, provided that the Company shall not be required to make any filings, registrations or take any prosecution actions with respect to such Company Intellectual Property that it would not take in the ordinary course of business consistent with past practice; ;
(x) enter into any contract or agreement which would otherwise be considered a Material Contract other than contracts or agreements with customers and resellers to whom the Company licenses Company Products in the ordinary course of business;
(xi) make or cause to be made any dividend, distribution, redemption, repurchase, recapitalization, reclassification, grant, issuance, repricing, split, combination or other transaction involving the Company Stock or other Company Securities (other than in the connection with the exercise of Purchase Rights outstanding as of the Agreement Date), or any preemptive right, subscription right, option, warrant or right to acquire any such capital stock or equity securities;
(xii) accelerate the collection of any accounts receivable, fail to pay, or delay in paying accounts payable when due (except any accounts payable being disputed in good faith), or otherwise make any change in or otherwise deviate from its accounting practices or procedures, except as required by GAAP;
(xiii) making change any capital expenditures that are in the aggregate in excess method of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01Tax accounting, emergency capital expenditures make or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing , file any amended Tax Return; electing , settle or changing compromise any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting liability, agree to any an extension or waiver of the statute of limitations period for with respect to the assessment or determination of Taxes, enter into any Taxclosing agreement with respect to any Tax or surrender any right to claim a Tax refund;
(xiv) change its customer pricing (including any rebates, discounts or promotions) if any such changes would have a material adverse effect upon the Business; notwithstanding the foregoing, all price changes that are made in the ordinary course of business and/or are consistent with past practices shall be deemed immaterial;
(xv) settlingacquire any business or Person, agreeing to settlewhether by merger or consolidation, waiving purchase of assets or otherwise compromising equity securities or any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; other manner;
(xvi) entering intocancel or waive any rights of substantial value, adoptor pay, terminate, modify, renew discharge or amend in settle any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company claim of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; substantial value;
(xvii) writing up amend the Company Certificate of Incorporation or writing down Company Bylaws or any analogous governing documents of any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; Subsidiaries;
(xviii) taking make any action new capital expenditure commitments that, individually or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respectaggregate, exceed $100,000; or or
(xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoingforegoing referred to in clauses (i) - (xviii).
Appears in 1 contract
Conduct of the Business. 14.1 From the Execution Date to the Effective Date, except as consented to in writing in advance by Licensee, AstraZeneca shall, and shall cause its Affiliates to, (a) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant use commercially reasonable efforts to Article IX, except carry on its business related to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business Licensed Products in the ordinary course of business and consistent with past practice in all material respects (respects, including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will by not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing transferring or otherwise disposing of any assets or securitiesencumbering (i) AstraZeneca’s rights in, including to and under material Intellectual Property Rights (other than AstraZeneca Corporate Marks) and rights in, to and under Patents Controlled by mergerAstraZeneca and utilized by AstraZeneca and its Affiliates as of the Execution Date for the Exploitation of the Licensed Products in the Licensed Territory and (ii) AstraZeneca’s Existing API (as defined in the Supply Agreement), consolidation, asset sale or other business combinationin each case (i) and (ii), other than in the ordinary course of business and consistent with past practice; , (viib) making to the extent commercially reasonable, continue the ongoing Post-Approval Commitments in all material respects and preserve in all material respects its relationships with suppliers, licensors, licensees, distributors and others having business dealings with it, in each case in relation to the Compounds and the Licensed Products with the intention that its ongoing business and goodwill related to the Compounds and the Licensed Products will not be impaired as of the Effective Date in any loans or advances to, or any investments in, any other Person (material respect in the case Licensed Territory and (c) not incur non-refundable costs exclusively related to registering for pain weekends/congresses; provided that the obligations of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than Section 14.1 shall not restrict (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation making of any employee whose annual base compensation does changes which AstraZeneca or its Affiliates may make with respect to its business generally or its mature brands business, which is not exceed $125,000 after giving effect to such increase specifically directed towards the Compounds or the Licensed Products, or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures activities contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizingand the Ancillary Agreements, agreeing or committing or entering into a Contract including actions contemplated on Schedule 10 to do any of the foregoingthis Agreement.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof of this Agreement until the earlier of the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXSection 8.01, except to the extent described in Schedule 5.01 or as otherwise required or specifically permitted provided for by this AgreementAgreement (including the Disclosure Schedules) or consented to by Parent (not to be unreasonably withheld, conditioned or delayed), the Company shall: (i) , and shall cause its Subsidiaries to, conduct the Business their businesses in the ordinary course of business consistent with past practice in all material respects using its reasonable best efforts to (including with respect to capital expendituresi) preserve intact its present business organization, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); all of its material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (iii) use maintain reasonably satisfactory relationships with its commercially reasonable efforts to preserve the present relationships of the Business with suppliersdirectors, vendorsofficers and senior executives, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance reasonably satisfactory relationships with the terms thereof its customers, lenders suppliers and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; others having material business relationships with it, (v) use manage its commercially reasonable efforts to keep, or to cause Spoonful to keep, available working capital (including the services timing of collection of accounts receivable and payment of accounts payable) and the Business Employees subject to the normal hiring and firing amount of Business Employees its deferred revenues in the ordinary course of business consistent with past practice and (vi) continue to make capital expenditures consistent with the Company’s business plan and budget provided to Parent prior to the date hereof; provided that, the foregoing notwithstanding, (x) the Company and its Subsidiaries may use commercially all available cash to repay any Indebtedness, pay any Transaction Expenses or for any other purpose, in each case prior to the Closing and (y) with respect to non-mandatory capital expenditures, the Company shall use the good faith discretion of a reasonable efforts business person in determining whether and to preserve intact its what extent such capital expenditures are made, in each case consistent with past practice, but in no event shall any such capital expenditures be made in excess of the amount set forth in the Company’s business organizationplan and budget. For the avoidance of doubt, value as a going concern nothing in this Agreement shall limit the ability of the Company and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesthe Company’s board of directors to accelerate the vesting of any Class B Common Share or unvested employee options to acquire Class B Common Shares prior to the Closing Date.
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or as otherwise required or specifically permitted provided for by this Agreement Agreement, as set forth on Schedule 6.01(b) or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned delayed or delayedconditioned), the Company shall refrain from: (i) issuingwill not, selling or delivering and will not permit any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect Subsidiaries to, or warrants to purchase or rights to subscribe fortake any action which, any of its Company LLC Interests or other Equity Interests (or amending any term of any if taken after the date of the foregoing); Latest Balance Sheet and prior to the date of this Agreement, would be required to be disclosed on Schedule 4.07.
(iic) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in From the in date of this Agreement until the ordinary course of business consistent with past practice and the terms and conditions earlier of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption Closing Date or purchase the termination of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assetsthis Agreement pursuant to Section 8.01, except as required by applicable Law or as otherwise provided for acquisitions by this Agreement (including the Disclosure Schedules), without the prior written consent of inventoryParent, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets none of the Company to become subject to a Lien (other than a Permitted Lien) or sellingits Subsidiaries shall make, leasing, licensing change or otherwise disposing of revoke any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing , change any annual Tax accounting period, adopt or change any material method of Tax accounting, file any amended Tax Return; electing return, enter into any closing agreement, settle any Tax claim or changing assessment, surrender any method of accounting for right to claim a Tax purposes; settling any Action refund, offset or claim other reduction in respect of Taxes; Tax liability or consenting consent to any extension or waiver of the limitations period for the assessment of applicable to any Tax; (xv) settling, agreeing to settle, waiving Tax claim or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingassessment.
Appears in 1 contract
Conduct of the Business. Pending Closing. Between the --------------------------------------- date hereof and the Closing hereunder the Company shall, and the Shareholders shall cause the Company to:
(a) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or as otherwise required or specifically permitted by this Agreement, not take or suffer or permit any action which would render materially untrue any of the representations or warranties of the Shareholders and the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect herein contained, and not omit to capital expenditurestake any action, the timely making omission of which would render materially untrue any budgeted such representation or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.warranty;
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically as permitted by this Agreement or consented to Agreement, conduct its business in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the a good and diligent manner in the ordinary and usual course (except the Company may stop offering Pay Day Loans and/or Consumer Loans);
(c) not enter into any contract, agreement, commitment or arrangement with any party, other than contracts for the provision of business consistent with past practice services and contracts for the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment materials and supplies in the ordinary and usual course of business, and except as may be required to comply with the terms hereof, not amend, modify or terminate any Real Property Lease, Personal Property Lease or Material Contract without the prior written consent of the Purchaser;
(d) use their best efforts to preserve the Company s business consistent organization intact, except as may be required to comply with past practice; the terms hereof, to keep available the services of its employees, and to preserve its relationships with customers, suppliers and others with whom it deals;
(vie) permitting not reveal, orally or in writing, to any party, other than the Purchaser and the Purchaser s authorized agents, any of the assets business procedures and practices, intellectual property or trade secrets followed or utilized by the Company in the conduct of its business;
(f) maintain in full force and effect all of the insurance policies listed on Schedule 4.21 and make no change in any insurance coverage without the prior written consent of the Purchaser;
(g) keep the premises occupied by the Company and all of the Company s equipment and other tangible personal property in good order and repair and perform all necessary repairs and maintenance;
(h) continue to become subject to a Lien maintain all of the Company s usual business books and records in accordance with its past practices and not change its method of accounting;
(other than a Permitted Lieni) or selling, leasing, licensing or otherwise disposing of not issue any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, capital stock or any investments inoption, warrant or right relating thereto;
(j) not waive any right or cancel any claim;
(k) except as disclosed on Schedule 4.10, not increase the compensation or rate of compensation payable to any of the Company s employees without the prior written consent of the Purchaser;
(l) maintain the Company s corporate existence and not merge or consolidate the Company with any other Person entity;
(in m) except as may be required to comply with the case terms hereof, comply with all provisions of loans all Real Property Leases, Personal Property Leases and Material Contracts and all applicable laws, rules and regulations;
(n) except as described on Schedule 4.10, not make any capital expenditure;
(o) not amend its articles of incorporation or advances bylaws;
(p) not agree to employees, do anything prohibited by this Section 6.2; and
(q) not make any material Tax election or settle or compromise any Tax liability for an amount materially in excess of $100,000 the liability therefor that is reflected in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingFinancial Statements.
Appears in 1 contract
Conduct of the Business. (a) From Subject to clause 7.2, Sirius and IGO must, during the period commencing on the date hereof until of this document and ending on the Closing Implementation Date, or conduct (and must procure that each of its subsidiaries conducts) its business in the earlier termination ordinary course, in substantially the same manner and at the same locations as conducted on the date of this Agreement pursuant to Article IXdocument, except and to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreementconsistent, the Company shall: use reasonable efforts to:
(i) conduct the Business in the ordinary course of preserve intact its business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); organisation;
(ii) maintain in effect keep available the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); services of its officers and employees;
(iii) use preserve its commercially reasonable efforts to preserve the present relationships of the Business relationship with financiers, customers, suppliers, vendorslicensors, licensees licensees, Government Agencies and other Persons others having business dealings with which the Business has business relationsit; and
(iv) maintain and preserve the value of its business and assets, including maintaining at least its current level of insurance, as in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between place on the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesdocument.
(b) From For the date hereof until the Closing Dateavoidance of doubt, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans Xxxxxx, "business in the ordinary course" includes:
(i) the conduct of annual staff performance and remuneration reviews including paying or advances agreeing to pay bonus payments to employees, and the engagement of new employees, in excess accordance with the Agreed Budget and the Salary Budget, but, to avoid doubt, without IGO’s prior written consent, Xxxxxx must not otherwise enter into or materially amend any employment, consulting, severance or similar agreement with one or more of $100,000 its directors, executives, officers or employees or accelerate or otherwise materially increase their compensation or benefits, including agreeing to pay a termination or retention payment that is not set out in the aggregate Salary Budget in Schedule 12;
(ii) the ongoing development and construction of the Nova-Xxxxxxxxx project, and exploration at the Nova-Xxxxxxxxx project, in accordance with the Agreed Budget;
(iii) ongoing exploration within the Agreed Budget and subject to clause 3.9 of the Demerger Implementation Deed (and, to avoid doubt, Xxxxxx must seek IGO’s prior written consent for all other exploration activities, such loans and advancesconsent not to be unreasonably withheld or delayed); (viii) pledging or otherwise encumbering all activities related to project financing, including drawdown and all activities required to ensure satisfaction of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreementconditions precedent to drawdown of existing facilities, entering into or amending any Contract in accordance with the Manager or any officer Agreed Budget; and
(iv) new and existing negotiations of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including offtake agreements and construction- related contracts with respect to reservesthe Nova-Xxxxxxxxx project on terms substantially the same as the existing offtake agreements and construction- related contracts with respect to the Nova-Xxxxxxxxx project.
(c) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver Without limiting clause 7.1(a), Xxxxxx must keep IGO informed of the limitations period for conduct of its business and operations, including:
(i) providing regular reports on the assessment financial affairs and operations of any Taxthe Sirius Group; and
(xvii) settling, agreeing to settle, waiving promptly providing copies of all material correspondence between Sirius or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets subsidiaries and any Government Agency or counterparty to a Material Agreement which is given or received following execution of this document until the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingEffective Date.
Appears in 1 contract
Samples: Scheme Implementation Deed
Conduct of the Business. (a) From The Sellers hereby covenant and agree that, from the date hereof until the Closing DateClosing, or the earlier termination of unless otherwise consented to by Purchaser in writing, they shall cause Altitun to observe each term set forth in this Agreement Section 6.01, and shall be accountable for any failure by Altitun in this regard pursuant to Article IXXI hereof:
(a) The business of Altitun shall be conducted only in, and Altitun shall not take any action except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreementin, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice Altitun's business, on an arm's-length basis and in accordance in all material respects with all applicable laws, rules and regulations and Altitun's past custom and practice;
(including with respect b) Altitun shall not cancel or terminate its current insurance policies or cause any of the coverage thereunder to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws)lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the Parent coverage under the canceled, terminated or lapsed policies for, to the extent feasible, substantially similar premiums are in full force and effect;
(c) Altitun shall have otherwise consented in writing (which consent will not be unreasonably withheldi) use its best efforts to preserve intact Altitun's business organization and goodwill, conditioned or delayed)keep available the services of Altitun's officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with Altitun; (ii) maintain in effect confer on a regular and frequent basis with representatives of Purchaser to report operational matters and the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage)general status of ongoing operations; (iii) use its commercially reasonable efforts not intentionally take any action which would render, or which reasonably may be expected to preserve render, any representation or warranty made by Sellers in this Agreement untrue at the present relationships of the Business with suppliers, vendors, licensees Closing; and other Persons with which the Business has business relations; (iv) maintain notify Purchaser of any emergency or other change in effect the Business Licenses normal course of Altitun's business or in the operation of Altitun's properties and of any governmental or third party complaints, investigations or hearings (if anyor communications indicating that the same may be contemplated);
(d) in accordance with Altitun (for purposes of this Section 6.01(d), all references to Altitun shall include the terms thereof Affiliates, and renew any Business License that would otherwise expire pursuant former Subsidiaries and Affiliates, of Altitun) shall file (or cause to be filed) at its own expense, on or prior to the terms thereof between due date, all Tax Returns for all Tax periods ending on or before the Closing where the due date for such Tax Returns or reports (taking into account valid extensions of the respective due dates) falls on or before the Closing (all Tax Returns described in this Agreement Section 6.01(d) and the Closingany schedules to be included therewith shall be prepared on a basis consistent with those of Altitun prepared for prior Tax periods); (v) use its commercially reasonable efforts to keepprovided, however, that Altitun shall not file any such Tax Returns, or other returns, elections, claims for refund or information statements with respect to cause Spoonful any liabilities for Taxes (other than federal, state or local sales, use, withholding or employment tax returns or statements) for any Tax period, or consent to keepany adjustment or otherwise compromise or settle any matters with respect to Taxes, available the services without prior consultation with and approval by Purchaser. Altitun shall provide Purchaser with a copy of the Business Employees subject to the normal hiring appropriate workpapers, schedules, drafts and firing final copies of Business Employees each federal and state income Tax Return or election of Altitun at least ten days before filing such return or election and shall reasonably cooperate with any request by Purchaser in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.connection therewith;
(be) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will Altitun shall not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuingmake or rescind any express or deemed election or take any other discretionary position relating to Taxes, selling (ii) settle or delivering compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or (iii) change any of its Company LLC Interests methods of reporting income or other Equity Interests or issuing or selling any securities convertible intodeductions for income Tax purposes from those employed in the preparation of the Tax Returns for the taxable year ended December 31, or options with respect to, or warrants to purchase or rights to subscribe for, 1999;
(f) Altitun shall not change any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting in effect at December 31, 1999, other than those required by Generally Accepted Accounting Principles; and
(g) Altitun shall not perform any act referenced by (or accounting practices (including with respect omit to reservesperform any act which omission is referenced by) or any Tax election; filing any amended Tax Return; electing or changing any method the terms of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingSection 4.12 hereof.
Appears in 1 contract
Samples: Share Purchase Agreement (Adc Telecommunications Inc)
Conduct of the Business. (a) From the date hereof until the earlier to occur of the Closing Date, or Date and the earlier termination of date that this Agreement pursuant to is terminated in accordance with Article IXXI (the “Interim Period”), except to the extent described in Schedule 5.01 or (x) as otherwise required or specifically permitted expressly contemplated by this AgreementAgreement (including as described on Section 7.1 of the Seller Disclosure Schedule and the other matters contemplated by the other Schedules and Exhibits hereto) or any of the other Transaction Documents, the Company (y) as required by applicable Law or Permits and (z) as otherwise approved in writing by Buyer (which approval shall not be unreasonably withheld, conditioned or delayed), Seller shall: :
(i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to maintain and preserve intact its business organizationin all respects the Purchased Assets and the Business;
(ii) keep accurate and complete books and records related to the Product, value as a going concern Purchased Assets and relationships the Business;
(iii) keep in full force and effect insurance in respect of the Business, the Product and the other Purchased Assets comparable in amount and scope of coverage to such insurance that is currently maintained by Seller;
(iv) perform in all material respects all obligations under the Assumed Contracts and any other Contracts relating to or affecting the Business, the Product or the Purchased Assets;
(v) comply in all material respects with third parties all Laws and Permits applicable to the Business, the Product or the other Purchased Assets; and
(including lessors, licensors, suppliers, distributors vi) maintain in effect all registrations and customers) and employeesapplications for all registered or pending Intellectual Property constituting Seller IP.
(b) From Without limiting the date hereof until generality of the Closing Dateforegoing, or during the earlier termination of this Agreement pursuant to Article IXInterim Period, except to the extent described in Schedule 5.01 or (i) as otherwise required or specifically permitted expressly contemplated by this Agreement (including as described on Section 7.1 of the Seller Disclosure Schedule and the other matters contemplated by the other Schedules and Exhibits hereto) or consented to any of the other Transaction Documents, (ii) as required by applicable Law or Permits or (iii) as otherwise approved in writing by the Parent Buyer (which consent will approval shall not be unreasonably withheld, conditioned or delayed), Seller shall not, in each case, solely with respect to the Company shall refrain from: Business or the Purchased Assets:
(i) issuing(A) incur, selling create, assume or delivering permit the incurrence, creation or assumption of any of its Company LLC Interests or Encumbrance with respect to the Purchased Assets, other Equity Interests or issuing or selling any securities convertible intothan Permitted Encumbrances, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term B) dispose of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization Purchased Assets other than dividends in the sales of inventory in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) business;
(A) mergingterminate any Assumed Contract or Permit other than any expiration in accordance with its terms, consolidating or combining with make any Person material amendment to or waive any material right or remedy under any such Assumed Contract or Permit or (B) acquiring enter into any material assets, except for acquisitions contract that would be an Assumed Contract outside of inventory, equipment and supplies in the ordinary course of business consistent business;
(iii) waive, release, transfer or grant any rights or options in or to any of the Purchased Assets;
(iv) commence any Proceeding with past practice; respect to the Purchased Assets;
(v) transfer, dispose of, grant or obtain, abandon, or permit to lapse or agree to transfer, dispose of, grant or obtain, abandon, or permit to lapse any rights with respect to any Seller IP, or disclose or agree to disclose to any Person, other than to Buyer or its Affiliates, any trade secret included in the Purchased Assets or owned by Seller;
(vi) permitting discharge, settle, compromise, satisfy or consent to any entry of judgment with respect to any Proceeding relating to the Purchased Assets that (A) results in any material restriction on the Business or the Product or (B) results in a Liability of the Business after the Closing;
(vii) acquire any properties or assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combinationthat would constitute Purchased Assets, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); ;
(viii) pledging or otherwise encumbering offer price concessions in the form of its Company LLC Interests DSA fees, concessions, invoice discounts, rebates or other Equity Interests; (ix) excepting as required discounts for purposes of facilitating or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, encouraging customer buy-ins other than in the ordinary course of business consistent with past practicebusiness; provided, that the parties acknowledge that Seller is in the process of resupplying the market after a temporary supply interruption and in a competitive market environment;
(ix) cancel any indebtedness to the extent such indebtedness would constitute a Purchased Asset, or waivingwaive, cancelling release or assigning assign any claims material claim, action, arbitration, dispute or other proceeding or rights of substantial value other than in the ordinary course Business;
(x) change the nature or scope of business consistent with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or or
(xixxi) authorizing, agreeing or committing or entering into a Contract agree to do take any of the foregoingactions specified in this Section 7.1(b).
(c) Nothing contained in this Agreement shall be construed to give Buyer or any of its Affiliates, directly or indirectly, any right to control or direct the Business prior to the Closing or any other businesses or operations of Seller or its Affiliates. Prior to the Closing, Seller shall exercise such control and supervision of the Business and of its other business and operations as is consistent with the terms and conditions of this Agreement and its Governing Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coherus BioSciences, Inc.)
Conduct of the Business. (a) From the date hereof of this Agreement until the earlier of the Closing Date, or Date and the earlier termination of this Agreement pursuant to Article IX(except as otherwise provided in this Agreement or as TDCC or HSB, except to as the extent described case may be, may consent in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, the Company shall: (i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Lawswriting), unless TDCC and DEI shall cause the Parent Contributed Business of DEI, and HSB and Radian shall have otherwise consented in writing (which consent will not cause the Contributed Business of Radian, to be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees conducted in the ordinary course of business consistent with past practice and (vi) shall use their commercially reasonable efforts to to:
(i) preserve intact its the business organization, value as a going concern organizations and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.relating to such Contributed Business;
(b) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalizationkeep available the services of the present employees connected with such Contributed Business;
(iii) continue making marketing, reclassificationadvertising, dividendpromotional, split or like change in its capitalization and other than dividends in the similar expenditures relating to such Contributed Business in the ordinary course of business consistent with past practice practice;
(iv) duly comply in all material respects with all laws, regulations or ordinances, including without limitation all Environmental Laws, applicable to such Contributed Business;
(v) maintain all of its Books and Records relating to such Contributed Business in the terms ordinary course of business consistent with past practice;
(vi) continue the maintenance and conditions repair of the Company’s Organizational DocumentsContributed Assets relating to such Contributed Business (including the making of scheduled capital expenditures) in the ordinary course of business consistent with past practice;
(vii) maintain in effect insurance with respect to the Contributed Assets related to such Contributed Business in the ordinary course of business and against risks, with carriers and in amounts (including deductibles) consistent with past practice;
(viii) maintain inventory and equipment related to such Contributed Business at levels consistent with past practice; and
(ix) comply in all material respects with all material contracts relating to such Contributed Business.
(b) Without limiting the generality of the foregoing, without the prior written consent of TDCC, in the case of Radian, or HSB, in the case of DEI, from the date of this Agreement until the Closing Date or the earlier termination of this Agreement, no Contributing Subsidiary will:
(i) merge or consolidate with any other Person;
(ii) acquire from any other Person, other than in the ordinary course of business, assets relating to its Contributed Business having a fair market value in excess of an aggregate of $1,000,000;
(iii) amending its Organizational Documents; (iv) making any redemption sell, lease, license, pledge or purchase otherwise dispose of any of its of its Company LLC Interests Contributed Assets except (i) pursuant to existing contracts or other Equity Interests; commitments and (vii) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; or
(viiv) permitting any of defer the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing payment of any assets amounts, or securitiesaccelerate the collection of any receivables, including by merger, consolidation, asset sale or other business combination, other than except in the ordinary course of business consistent with past practice; ;
(viiv) making create or suffer to exist any loans new Lien or advances toencumbrance on any of its Contributed Assets, other than Permitted Liens;
(vi) enter into any material contract or any investments inagreement (or, except for technical amendments to substitute the name of Newco for the name of such party, any other Person (in the case of loans amendment, modification or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation waiver of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase existing contract or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of agreement), that would be an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Assumed Liability of the Company that is made except in the ordinary course of business consistent with past practice;
(vii) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than except in the ordinary course of business consistent with past practice, accept, receive or waiving, cancelling allow any customer to make any prepayment related to its Contributed Business or assigning any claims or rights of substantial value other than its Assets;
(viii) except in the ordinary course of business consistent with past practice; , waive or release any right of value relating to its Contributed Assets or its Contributed Business;
(xiiiix) making declare, set aside or pay any capital expenditures that are dividend or other distribution (whether in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01cash or stock, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) property or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xvcombination thereof) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivablecapital stock;
(x) purchase any Derivative Financial Instrument; or
(xviiixi) taking any action agree or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoing.
Appears in 1 contract
Samples: Contribution Agreement (Hartford Steam Boiler Inspection & Insurance Co)
Conduct of the Business. (a) From the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted Except as contemplated by this Agreement, as set forth on Schedule 5.1 or with the Company shall: (i) conduct the Business in the ordinary course prior written consent of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing Buyer (which consent will shall not be unreasonably withheld, conditioned or delayeddelayed and shall be deemed to have been given to any written request by Seller to which Buyer does not respond within five (5) business days after such request is sent); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement hereof and the Closing; (v) use its commercially reasonable efforts to keepClosing Date, or to cause Spoonful to keep, available the services of Seller shall operate the Business Employees subject to and maintain the normal hiring and firing of Business Employees Assets in the ordinary course of business (i.e., consistent with Seller’s past custom and practice in conducting the Business)(including with respect to the handling of receipts and (vithe collection of Accounts Receivable and the payment of payables of the Business) and shall use commercially reasonable efforts to preserve intact its Seller’s business organization, value as a going concern and relationships with third parties Active Customers and other Persons (including lessors, licensors, suppliers, distributors and customerswithout limitation Division Employees) and employees.
(b) From who have an existing business relationship with the date hereof until Business. Without limiting the Closing Date, or generality of the earlier termination of this Agreement pursuant to Article IXforegoing, except to as set forth on Schedule 5.1 or except with the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent prior written consent of Buyer (which consent will shall not be unreasonably withheld, conditioned or delayeddelayed and shall be deemed to have been given to any written request by Seller to which Buyer does not respond within five (5) business days after such request is sent), Seller shall, to the Company shall refrain from: (i) issuingextent applicable:
5.1.1 not sell, selling lease, assign, transfer or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term otherwise dispose of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, Assets other than in the ordinary course of business consistent except that Seller may demolish the structure at 200 Xxxx 0xx Xxxxxx in Lawrence, Kansas;
5.1.2 use commercially reasonable efforts to maintain its relations and goodwill generally with past practice; suppliers, customers, distributors and others having business relations with Seller relating to the Business;
5.1.3 comply in all material respects with all Legal Requirements applicable to Seller, and keep in full force and effect in all material respects all Governmental Permits applicable to Seller;
5.1.4 keep in full force and effect the insurance coverages (viicomparable in amount and scope) making any loans or advances tocovering Seller, or any investments in, any other Person (the Assets and the System as of the date hereof in the case ordinary course of loans or advances to employeesbusiness;
5.1.5 maintain the Assets in adequate operating condition for their respective present uses and operation, in excess of $100,000 ordinary wear and tear excepted, and maintain inventory and spare equipment at levels in the aggregate for ordinary course of business;
5.1.6 deliver to Buyer, within 30 days following the end of each calendar month, all such loans financial statements, financial reports, and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with related information relating to the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted Business that are prepared in the ordinary course of business consistent for regular review by executive management of Seller;
5.1.7 deliver to Buyer, within 10 days following the end of each calendar month, true and complete copies of monthly subscriber reports and subscriber account receivable aging reports with past practice in respect to the operation of the compensation Business; and
5.1.8 not mortgage, pledge or otherwise subject to any Lien other than Permitted Encumbrances, any of the Assets;
5.1.9 not adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
5.1.10 not make or rescind any employee whose annual base compensation does express or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions on its income Tax Returns, or the classifications of its existing property and assets, for any taxable period ending on or after December 31, 2009, in each case, to the extent such action could materially adversely affect Buyer after Closing, and not exceed $125,000 after giving effect deviate from the federal depreciation schedules for its property and assets, except in either case as may be required by Legal Requirement or the IRS;
5.1.11 maintain the books of account relating exclusively to such the Business in accordance with the methodology used to prepare the 2009 Financials in the ordinary course of business, and not make any change in any method of accounting or accounting practice or policy other than those required by GAAP or applicable Legal Requirements;
5.1.12 not implement any material increase or (B) decrease in the rates charged to the subscribers of the System, add any increase channels or make any other changes in benefits programming or compensation required by Law give any notices to subscribers or required local authorities concerning any material changes in rates or programming, or make any commitment regarding changes in or continuation of rates or programming, except as obligated pursuant to applicable Legal Requirements or the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (Material Contracts and other than a guarantee by marketing and promotional activities in the Company ordinary course of a Liability of the Company that is made business;
5.1.13 bxxx and collect from subscribers in the ordinary course of business consistent without delay or acceleration, continue to implement its procedures for disconnecting and discontinuance of service to subscribers whose accounts are delinquent, in accordance with past practice) or incur, assume or otherwise become liable practice and continue to advertise in respect the ordinary course of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than business;
5.1.14 except in the ordinary course of business consistent with past practice, not enter into, modify, renew or waivingamend any Assumed Contract, cancelling including any act or assigning omission that effectuates or causes a material amendment or modification to, or a breach by Seller of or termination of (excluding any claims expiration due to the passage of time), any of the Material Contracts, and not enter into any lease for real property that will be assumed by, or rights binding upon, Buyer at Closing except any that is terminable without penalty on no more than sixty (60) days notice and not materially modify or amend or enter into any lease for any headend site;
5.1.15 not increase the rates of substantial value other than direct compensation or bonus compensation payable or to become payable to any Division Employee;
5.1.16 make capital expenditures in the ordinary course of business consistent and as necessary to comply with past practice; (xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver explicit terms of the limitations period for Franchises and the assessment of other Governmental Permits and pay the debts and obligations incurred by Seller as they become due and not waive, release or assign any Tax; (xv) settlingmaterial rights or claims;
5.1.17 not settle any material claims, agreeing to settleactions, waiving arbitrations, disputes or otherwise compromising other proceedings, including any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 such matters that would result in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend Seller being enjoined in any material respect (including from engaging in the transactions contemplated by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth in this Agreement becoming false hereby or inaccurate in any material respectmaterially adversely affecting the Business; and
5.1.18 not agree or (xix) authorizing, agreeing or committing or entering into a Contract commit to do any of the foregoingaction prohibited by this Section 5.1.
Appears in 1 contract
Conduct of the Business. (a) From Except as may be necessary to comply with applicable Legal Requirements, as specifically contemplated by this Agreement or as disclosed in Schedule 7.9, from the date hereof Signing Date until the Closing Date, or the earlier termination of this Agreement pursuant to Article IXSeller will, except to and will cause the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement, Companies and the Company shall: Selling Subsidiaries to:
(i) conduct the Business in the ordinary course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and the relationships with third parties (including lessors, licensorscustomers, suppliers, distributors employees and customersothers having business dealings with the Business and the Companies; and
(ii) conduct the activities of the Business in the ordinary and employeesusual course of business.
(b) From Except as described in Schedule 7.9 or as otherwise contemplated by this Agreement or as may be necessary to comply with applicable Legal Requirements, the date hereof until Seller covenants and agrees that, between the Signing Date and the Closing Date, or without the earlier termination prior written consent of this Agreement pursuant to Article IXthe Buyer, except none of the Seller, the Selling Subsidiaries (to the extent described in Schedule 5.01 it relates exclusively to the Business) or otherwise required the Companies will:
(A) issue or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheldsell any capital stock, conditioned or delayed)notes, the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests bonds or other Equity Interests securities of any Company (or issuing or selling any securities convertible intooption, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests warrant or other Equity Interests right to acquire the same) or (or amending any term of B) redeem any of the foregoing); capital stock of any Company;
(ii) effecting except as part of the Closing arrangements agreed with the Buyer to replace Intercompany Indebtedness with Third Party indebtedness, incur any recapitalizationindebtedness to Third Parties for borrowed money in excess of $8,000,000 individually or $25,000,000 in the aggregate, reclassificationprovided, dividendhowever, split that this clause (ii) will not apply to the Seller or like change the Selling Subsidiaries so long as the indebtedness incurred is not an Assumed Liability or is otherwise secured by any Asset (if the security interest is not released as of the Closing Date);
(iii) amend or restate the certificate of incorporation or by-laws (or other similar organizational documents) of any Company;
(iv) grant or announce any increase in its capitalization the salaries, bonuses or other benefits payable to any Business Employee, adopt any new Plans or amend or modify any existing Plans with respect to the Business, in each case, other than dividends as required by applicable Legal Requirements, pursuant to any plans, programs or agreements existing on the Signing Date or other ordinary increases consistent with past practices not in excess of 3% in the aggregate;
(v) change any method of accounting or accounting practice or policy used by the Seller or any Selling Subsidiary (in either case, as it relates exclusively to the Business) or any Company, other than such changes required by the applicable generally accepted accounting principles or unless required by law;
(vi) fail to exercise any rights of renewal with respect to any material Leased Real Property that by its terms would otherwise expire;
(vii) settle or compromise any material claims or debts relating exclusively to the Business;
(viii) acquire, dispose of, assign, lease or pledge (if the security interest is not released as of the Closing Date) any material Asset outside of the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; ;
(viix) permitting enter into, amend any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) material term of, or sellingwaive any material right under, leasing, licensing any Material Contract or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, Real Property Lease other than in the ordinary course of business consistent with past practice; (vii) making and other than any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; customer contracts;
(x) increasing organize any benefits under Subsidiary or acquire the capital stock of any Employee Benefit Plan Person or increasing any equity or ownership interest in any Person, or form a joint venture with a Third Party;
(xi) make any material Tax election or settle or compromise any material federal, state or local Tax Liability, in each case to the compensation payable or paidextent related exclusively to the Business;
(xii) since 30 September 2006 with respect to the Companies, incur any financial indebtedness, whether conditionally accrued, contingent or otherwise, that would not have to any employee, officer, manager or consultant of Company (other than (A) any increase adopted be reflected in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan)Final Closing Statements; (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practice; and
(xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing agree to take any action that would result in any of the representations and warranties set forth actions specified in Sections 7.9(b)(i)-(xii), except as contemplated by this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of and the foregoingAncillary Agreements.
Appears in 1 contract
Conduct of the Business. (a) From the date hereof until Prior to the Closing Date, Date or the earlier termination of this Agreement pursuant to Article IXthe terms hereof, except to the extent described in as contemplated hereby (including, without limitation, as set forth on Schedule 5.01 or otherwise required or specifically permitted by this Agreement5.2(b)), Seller will cause the Company shall: (iand will cause Parent to cause the Company) to conduct the Business only in the ordinary course of business business, substantially consistent with past practice in all material respects (including and with respect to capital expenditurescurrent business plans, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent and will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to preserve the present business organization and relationships of the Business with suppliers, vendors, licensees and other Persons with which the Business has business relations; (iv) maintain in effect the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant Company as they relate to the terms thereof between Business, preserve the date rights, franchises, good will and relations of this Agreement its clients, preserve the Licenses issued to the Company in full force and the Closing; (v) use its commercially reasonable efforts to keepeffect consistent with past practice, or to cause Spoonful to keep, keep available the services of the Business Employees subject to the normal hiring and firing of Business Employees other employees directly involved in the ordinary course of Business (provided, however, that Seller shall have no obligation to pay stay bonuses not already committed to), preserve the Company’s relationships with its clients and others having business dealings with the Business and continue to market new Business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeespractice.
(b) From Without limiting the generality of Section 5.2(a), during the period from the date hereof until of this Agreement to the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in it affects the Business and except as set forth on Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien5.2(b) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically expressly permitted by this Agreement, entering into or amending any Contract with Seller shall not, and shall cause the Manager or any officer of Company (and shall cause the Parent to cause the Company; ) not to, without the prior written consent of Purchaser:
(xi) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, (A) terminate, transfer or waivingotherwise dispose of any Company Assets or assets which would otherwise be CNA Transferred Assets, cancelling (B) enter into, modify or assigning make any substantial change to any CNA Assigned Contract, (C) acquire any assets (other than investment securities acquired in the ordinary course of business) related to the Business which in the aggregate exceed $25,000, or (D) reallocate any assets currently owned, used or held for use by the Business to any other line of business, unit or division of the Company or to any Affiliate of Seller or any other line of business, unit or division of Seller or any Affiliate of Seller;
(ii) (A) permit or allow any of the Company Assets, CNA Transferred Assets or agreements with customers or distributors of the Business to become subject to any Encumbrance except Permitted Encumbrances, (B) waive any claims or rights of substantial value other than relating to the Business, except in the ordinary course of business consistent with past practice; practices, (xiiiC) making any capital expenditures that are without reference to practices followed in the aggregate ordinary course of business, grant any increase in excess the compensation or benefits of $100,000 or increase or promise to increase, or establish any new Plan or Employee Benefit Arrangement for any of the Business Employees (including any such increase pursuant to any wage, salary, incentive, bonus, pension, profit-sharing or other plan or commitment), except for payments of bonuses earned by Business Employees according to the CNA Annual Incentive Bonus plan for the 2004 calendar year, or (D) adopt, enter into or amend any Severance Benefits, except as provided in Section 5.7(i);
(iii) make any change, in a manner which would be adverse to the Business, in accounting methods, principles or practices used by the Company in connection with the Business, including, without limitation with respect to maintenance of capital adequacy requirements, except insofar as may be required by a change in U.S. generally accepted accounting principles or tax accounting principles or as may be required by law or any Governmental Authority;
(iv) permit any Business Employee’s employment to be transferred to any other business of Seller or any Affiliate of Seller other than the Business at any time from the date of this Agreement to the date which is one day after the Closing Date;
(v) other than in the ordinary course of the Business, terminate the services of any Business Employee (other than capital expenditures contemplated for cause) or substantially change the duties of any Business Employee;
(vi) solicit the employment of any Business Employee unless Purchaser has notified Seller in writing that it will not make an offer of employment to the Business Employee, or that Purchaser’s offer of employment has been rejected by the capital expenditure budget attached Business Employee and Purchaser has elected to Schedule 5.01, emergency capital expenditures or capital expenditures that are required waive the prohibition of this subsection 5.2(b)(vi);
(vii) cause the Company to maintain the Business Books and Records other than in compliance the same manner and with the same care that such Books and Records have been maintained prior to the execution of this Agreement;
(viii) fail to pay any applicable Laws)undisputed accounts payable in accordance with existing practices, including, but not limited to, the timing of such payments in relation to the date the invoice is received; or
(xivix) making any change agree in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving writing or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any action that would result in any of the representations and warranties set forth actions described above in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingSection 5.2(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Security Capital Corp/De/)
Conduct of the Business. (a) From During the period from the date hereof until the Closing Date, or the earlier termination of this Agreement pursuant to Article IX, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreementearlier of the Closing and the Termination Date (the “Pre-Closing Period”), the Company shall: shall (i) conduct the Business its business in the ordinary course Ordinary Course of business consistent with past practice in all material respects (including with respect to capital expenditures, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed)Business; and (ii) maintain in effect the insurance coverage described on Schedule 7.16 (or reasonably equivalent replacement coverage); (iii) use its commercially reasonable efforts to to: (A) maintain and preserve the present Business in all material respects in the Ordinary Course of business; (B) maintain the ordinary and customary relationships of the Business with its customers, distributors, suppliers, vendorslicensors, licensees employees, regulators and other Persons with which the Business has business relationsstakeholders; and (ivC) maintain in effect all material respects the Business Licenses (if any) in accordance with the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between the date of this Agreement and the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services of the Business Employees subject to the normal hiring and firing of Business Employees Purchased Assets in the ordinary course Ordinary Course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employeesBusiness.
(b) From Without limiting the date hereof until foregoing provisions of Section 6.01(a) hereof, during the Pre-Closing Date, or the earlier termination of this Agreement pursuant to Article IXPeriod, except to the extent described in Schedule 5.01 or as otherwise required or specifically permitted provided for by this Agreement (including as set forth on Schedule 6.01(b)) or consented to in writing by the Parent Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: shall:
(i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting not effect any recapitalization, reclassification, dividend, stock split or like change in its capitalization other than dividends capitalization;
(ii) not amend its certificate of formation or operating agreement (or equivalent organizational documents);
(iii) not take any action which, if such action had been taken during the time period covered by Section 3.08, would require disclosure pursuant to Section 3.08;
(iv) preserve and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;
(v) maintain the properties and assets included in the Purchased Assets in substantially the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;
(vi) continue in full force and effect without modification all Insurance Policies, except as required by applicable Law;
(vii) pay the debts, Taxes and other obligations of the Business when due, except such debts, Taxes and other obligations the amount or validity of which are being contested in good faith;
(viii) defend and protect the properties and assets included in the ordinary course of business Purchased Assets from infringement or usurpation consistent with past practice and the terms and conditions of the Company’s Organizational Documents; ;
(iiiix) amending its Organizational Documents; (iv) making any redemption or purchase of any perform all of its of its Company LLC Interests or other Equity Interests; obligations under all Assigned Contracts;
(vx) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment maintain the Company’s books and supplies records in the ordinary course of business consistent accordance with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted by this Agreement, entering into or amending any Contract with the Manager or any officer of the Company; (x) increasing any benefits under any Employee Benefit Plan or increasing the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any employee whose annual base compensation does not exceed $125,000 after giving effect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); ;
(xi) becoming liable comply in respect of any guarantee (other than a guarantee by all material respects with all Laws applicable to the Company of a Liability conduct of the Company that is made in Business or the ordinary course ownership and use of business consistent with past practice) or incur, assume or otherwise become liable in respect of any Indebtedness; the Purchased Assets;
(xii) repayinguse its commercially reasonable efforts to preserve and maintain the Business and the rights, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilitiesfranchises, other than in goodwill and relationships of its employees, customers, vendors, regulators and others having relationships with the ordinary course of business consistent with past practice, or waiving, cancelling or assigning any claims or rights of substantial value other than in the ordinary course of business consistent with past practiceBusiness; and
(xiii) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01, emergency capital expenditures not take or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); (xiv) making any change in its methods of accounting or accounting practices (including with respect to reserves) or any Tax election; filing any amended Tax Return; electing or changing any method of accounting for Tax purposes; settling any Action or claim in respect of Taxes; or consenting to any extension or waiver of the limitations period for the assessment of any Tax; (xv) settling, agreeing to settle, waiving or otherwise compromising any pending or threatened Actions or claims (A) involving potential payments by or to the Company of more than $100,000 in aggregate, (B) that admit Liability or consent to non-monetary relief, or (C) that otherwise are or would reasonably be expected to be material to the Company or the Business; (xvi) entering into, adopt, terminate, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take permit any action that would result in cause any of the representations and warranties set forth changes, events or conditions described in this Agreement becoming false or inaccurate in any material respect; or (xixSection 6.01(b) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingoccur.
Appears in 1 contract
Conduct of the Business. (a) From During the period from the date hereof of this Agreement and continuing until the Closing Date, or earlier of the earlier termination of this Agreement pursuant or the Closing, Seller agrees, and agrees to Article IXcause its Affiliates, to (i) conduct the Business, except to the extent described that the Buyer Parties shall otherwise consent in Schedule 5.01 or otherwise required or specifically permitted by this Agreementwriting, the Company shall: (i) conduct the Business in the ordinary course Ordinary Course of business consistent with past practice in all material respects (including with respect to capital expendituresBusiness, the timely making of any budgeted or emergency capital expenditures or capital expenditures that are required to maintain the Business in compliance with any applicable Laws), unless the Parent shall have otherwise consented in writing (which consent will not be unreasonably withheld, conditioned or delayed); (ii) maintain in effect pay the insurance coverage described on Schedule 7.16 debts and Taxes of the Business when due (or reasonably equivalent replacement coveragesubject to Section 4.1(e) below); , (iii) pay or perform other obligations of the Business when due, (iv) pay any renewal fees of the Business when due and take all such other steps as may be necessary for maintaining or defending the Transferred IP and (v) preserve intact the present business organization of the Business, use its reasonable best efforts to keep available the services of the present officers and employees of the Business, and use its commercially reasonable efforts to preserve the present relationships of the Seller Parties and the Business with customers, suppliers, vendorsdistributors, licensors, and licensees of the Business, and other Persons others having business dealings with which the Business, all with the goal of preserving unimpaired the goodwill and ongoing businesses of the Business has business relations; (iv) maintain at the Closing. Seller shall promptly notify the Buyer Parties of any event or occurrence or emergency not in effect the Ordinary Course of Business and any material event involving the Seller Parties or the Business Licenses (if any) in accordance with that arises during the terms thereof and renew any Business License that would otherwise expire pursuant to the terms thereof between period from the date of this Agreement and continuing until the Closing; (v) use its commercially reasonable efforts to keep, or to cause Spoonful to keep, available the services earlier of the Business Employees subject to the normal hiring and firing of Business Employees in the ordinary course of business consistent with past practice and (vi) use commercially reasonable efforts to preserve intact its business organization, value as a going concern and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees.
(b) From the termination date hereof until the Closing Date, or the earlier termination of this Agreement pursuant or the Closing. In addition to Article IXthe foregoing, except to the extent described in Schedule 5.01 or otherwise required or specifically permitted by this Agreement or consented to in writing by the Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall refrain from: (i) issuing, selling or delivering any of its Company LLC Interests or other Equity Interests or issuing or selling any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its Company LLC Interests or other Equity Interests (or amending any term of any of the foregoing); (ii) effecting any recapitalization, reclassification, dividend, split or like change in its capitalization other than dividends in the in the ordinary course of business consistent with past practice and the terms and conditions of the Company’s Organizational Documents; (iii) amending its Organizational Documents; (iv) making any redemption or purchase of any of its of its Company LLC Interests or other Equity Interests; (v) (A) merging, consolidating or combining with any Person or (B) acquiring any material assets, except for acquisitions of inventory, equipment and supplies in the ordinary course of business consistent with past practice; (vi) permitting any of the assets of the Company to become subject to a Lien (other than a Permitted Lien) or selling, leasing, licensing or otherwise disposing of any assets or securities, including by merger, consolidation, asset sale or other business combination, other than in the ordinary course of business consistent with past practice; (vii) making any loans or advances to, or any investments in, any other Person (in the case of loans or advances to employees, in excess of $100,000 in the aggregate for all such loans and advances); (viii) pledging or otherwise encumbering of its Company LLC Interests or other Equity Interests; (ix) excepting as required or specifically permitted expressly contemplated by this Agreement, entering into except in the Ordinary Course of Business, or amending any Contract with the Manager or any officer except as expressly set forth in Section 4.1 of the Company; Disclosure Schedule, Seller shall not, and shall cause its Affiliates not to, without the prior written consent of Buyer, from and after the date of this Agreement, and only with respect to the Purchased Assets or the Business:
(xa) increasing any benefits under any Employee Benefit Plan or increasing sell inventory related to the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, manager or consultant of Company (other than (A) any increase adopted in the ordinary course of business consistent with past practice in respect Business outside of the compensation Ordinary Course of any employee whose annual base compensation does not exceed $125,000 after giving effect Business, including with respect to such increase or (B) any increase in benefits or compensation required by Law or required pursuant to the terms of an existing Employee Benefit Plan); (xi) becoming liable in respect of any guarantee (other than a guarantee pricing, discounting practices, bundling, sales volume and services levels, and will maintain inventory used by the Company of a Liability of the Company that is made in the ordinary course of business consistent with past practice) or incurBusiness sufficient to meet expected customer requirements, assume or otherwise become liable in respect of any Indebtedness; (xii) repaying, prepaying or otherwise discharging or satisfying any Indebtedness or other material Liabilities, other than in the ordinary course of business consistent with past practice, including sufficient raw materials, capacity and work in process in light of anticipated demand and customary cycle times and sufficient finished goods inventory related to the Business for satisfaction of customer orders of the Business on hand at Closing;
(b) engage in any transaction relating to the Purchased Assets;
(c) pay, discharge, waive or waivingsatisfy any Liability of the Business, cancelling or assigning any claims or rights of substantial value other than payments, discharges or satisfactions in the ordinary course Ordinary Course of business consistent with past practice; Business;
(xiiid) making any capital expenditures that are in the aggregate in excess of $100,000 (other than capital expenditures contemplated by the capital expenditure budget attached to Schedule 5.01i) adopt or change material accounting methods, emergency capital expenditures policies or capital expenditures that are required to maintain the Business in compliance with any applicable Laws); practices (xiv) making including any change in its methods depreciation or amortization policies) of accounting the Business or accounting practices (including with respect to reservesii) revalue any of the material assets (whether tangible or intangible) or properties of the Business, including writing down the value of inventory or writing off notes or accounts receivable;
(e) make or change any material Tax election, adopt or change any Tax election; filing accounting method, enter into any amended closing agreement, settle any Tax Return; electing claim or changing any method of accounting for Tax purposes; settling any Action assessment or claim in respect of Taxes; or consenting consent -35- to any extension or waiver of the limitations limitation period for applicable to any claim or assessment, in each case, with respect to Taxes related to the assessment Business;
(f) create or permit the creation of any Tax; Lien (xvother than Permitted Liens) settlingon the Purchased Assets;
(g) sell, agreeing to settlelease, waiving license or otherwise compromising dispose of or grant any pending security interest in any of the its properties or threatened Actions assets (whether tangible or claims (Aintangible) involving potential payments by or related to the Company Business;
(h) (i) incur on behalf of more than $100,000 the Business, any indebtedness, except for advances to employees for travel and business expenses in aggregatethe Ordinary Course of Business, (Bii) that admit Liability or consent amend the terms of any outstanding loan agreement of Seller Parties which relate primarily to non-monetary reliefthe Business, or (Ciii) that otherwise are guarantee by Seller Parties on behalf of the Business, any indebtedness of any other Person;
(i) waive or would reasonably be expected to be material release any right or claim of the Business, including any write-off or other compromise of any account receivable of the Business;
(j) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation primarily related to the Company Business;
(k) (i) sell, lease, license or transfer to any Person any rights to any Purchased Assets or enter into any agreement or modify any existing agreement with respect to any Purchased Assets with any Person or with respect to any Intellectual Property of any Person which is related to the Business, (ii) purchase or license any Intellectual Property related to the Business or enter into any agreement or modify any existing agreement with respect to the Intellectual Property of any Person which is related to the Business, (iii) enter into any agreement or modify any existing agreement with respect to the development of any Intellectual Property which is related to the Business with a Third Party, or (iv) change royalties or pricing, set or charged by Seller and used in the Business to its customers or licensees, or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to Seller Parties for use in the Business;
(l) enter into, amend or otherwise modify, or violate the terms of, any Material Contract;
(m) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Business;
(n) other than as required by applicable Law or an existing Contract or agreement disclosed in Section 2.21(b)(ii) of the Disclosure Schedule, and with respect to Continuing Employees, enter into any employment contract, pay or agree to pay any bonus, additional salary, severance, termination payment or special remuneration to such Continuing Employee (or change the material terms of employment or engagement thereof), or increase or modify the salaries, wage rates, or other compensation (including any equity-based compensation) of any such Continuing Employee, except payments made pursuant to written agreements outstanding on the date hereof and disclosed in Section 4.1(n) of the Disclosure Schedule;
(o) promote, reassign, demote or terminate any Continuing Employees (except for a termination with cause as determined in good faith by the Seller), or encourage any Continuing Employees to resign from Seller;
(p) cancel, amend or renew any insurance policy primarily related to the Business; or
(xviq) entering intotake, adoptor agree in writing or otherwise commit to take, terminateon behalf of Seller or on behalf of the Business, modify, renew or amend in any material respect (including by accelerating material rights or benefits under) any Contract unless such Contract requires payments by the Company of less than $10,000 per month and that can be terminated by the Company upon 60 days’ or less notice without penalty; (xvii) writing up or writing down any of its material assets of the Company actions described in Sections 4.1(a) through 4.1(p) hereof, or revalue its inventory or reserves in respect of its accounts receivable; (xviii) taking any action or failing to take any other action that would (i) prevent the Seller Parties from performing, or cause the Seller Parties not to perform, their respective covenants hereunder or (ii) cause or result in any of the its representations and warranties set forth in this Agreement becoming false or inaccurate in any material respect; or (xix) authorizing, agreeing or committing or entering into a Contract to do any of the foregoingSeller Parties contained herein to be untrue or incorrect.
Appears in 1 contract
