Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following: (a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice; (c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices; (d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders; (f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder; (g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder; (h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus; (i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole); (j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing; (k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices; (l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable; (m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder; (n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices; (o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period; (p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice; (q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement; (r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans; (s) Make capital expenditures in excess of $500,000; (t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or (u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 3 contracts
Samples: Business Combination Agreement (Numberbubble, S.A.), Business Combination Agreement (Schwarz Jeffrey E), Business Combination Agreement (Fusion Fuel Green LTD)
Conduct Prior to Closing. 7.1 Conduct of Business by HLSeller hereby covenants and agrees with ------------------------ Purchaser, the Companythat, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except prior to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheldClosing, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without unless the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL)Purchaser shall have been obtained, which consent shall not be unreasonably withheld, conditioned or delayedand except as otherwise contemplated in this Agreement, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parentit shall cause Superior and its Subsidiaries to, and Merger Sub Superior and its Subsidiaries shall, operate their respective businesses only in the usual, regular and ordinary course and in accordance with their respective prior practices, and shall not do any use their reasonable best efforts to preserve intact their respective business organizations and assets and maintain their respective rights, franchises and businesses and customer relations necessary to run their respective businesses as currently run, to maintain present relationships with licensors, suppliers, distributors and others having significant business relationships with them, and to keep available the services of their respective officers and employees. Notwithstanding anything to the contrary contained herein, Purchaser acknowledges that, prior to the Closing, Superior intends to sell to Seller or one of its affiliates all of its automatic teller machines located in Wal-Mart, Sam's Club and Wal-Mart Supercenter properties. Without limiting the generality of the followingforegoing and except as otherwise affected by matters contemplated by this Agreement or in connection with the transactions contemplated by this Agreement, from the date hereof until the Closing, Seller will cause each of Superior and its Subsidiaries to, and each of Superior and its Subsidiaries will:
(a) Waive carry on its business in substantially the same manner as heretofore carried on and neither introduce any share repurchase rightsmaterial new method of management, accelerateoperation or accounting, amend or (except as specifically provided for herein) change nor provide discounted services outside the period ordinary course of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansbusiness;
(b) Grant any material severance maintain its properties, facilities, equipment and other assets, including those held under leases, in good working order, condition and repair, ordinary wear and tear excepted;
(c) maintain its present debt and lease instruments (unless same are otherwise mature), perform all of its obligations thereunder and refrain from entering into new or termination pay to (i) any officer amended debt or (ii) any employeelease instruments, except pursuant to applicable Legal Requirements, written agreements outstanding, for debt incurred or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee leases entered into in the ordinary course of business consistent with past practicebusiness, without prior written notice to Purchaser;
(cd) Abandon, allow to lapse, transfer, sell, assign, or license to not incur any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, indebtedness outside of the ordinary course of business other than deposits or ordinary trade accounts payable at market rates with no prepayment penalty which are used to fund operations in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockbusiness;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock keep in full force and effect its present insurance policies or other equity securities or ownership interests, except with respect to Converting Shareholderscomparable insurance coverage;
(f) Issuemaintain its present salaries and commission levels for all officers, deliverdirectors, sell, authorize, pledge employees or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securitiesagents, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents for raises and bonuses that may be awarded to Employees in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion keeping with past practices of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales Superior in the ordinary course of business consistent with past practiceits business, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter refrain from entering into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, agreements except in the ordinary course of business consistent with past practicesbusiness, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practicesand refrain from entering into any collective bargaining agreement;
(lg) (i) Paycomply with and cause to be complied with all applicable laws, dischargerules, settle regulations and orders of all federal, state and local governments or satisfy any material claimsgovernmental agencies affecting or relating to Superior or its assets, liabilities properties, operations, businesses or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation Employees except where the consideration given by the Party is other than monetary or failure to which an officer, director or employee of such Person is comply will not have a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;Material Adverse Effect; and
(mh) Except in the ordinary course of business consistent with past practices, modify in make adequate provision for any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting Taxes due for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementSuperior.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Conduct Prior to Closing. 7.1 Conduct of Business Except as directed by HLGTT pursuant to this Agreement, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Pre-Closing Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub Agent shall, except solely to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not it would reasonably be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies expected to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do affect any of the following:
(a) Waive any share repurchase rightsCustomer Contracts or the Supplier Contracts, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and conduct its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales only in the ordinary course of business consistent with past practice, preserve intact its business organization and (B) relationships with customers, suppliers and others having business dealings with it and keep available the sale, lease or disposition services of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all each of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under present officers and employees. Without limiting the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any generality of the foregoing;, except as directed by GTT pursuant to this Agreement, during the Pre-Closing Period, the Agent shall each:
(ka) Except as contemplated by Section 8.15 hereundernot amend, waive, terminate, or as otherwise required by applicable Legal Requirements take any action that would constitute a breach under, any Customer Contract or pursuant to an existing Plan, policy or Company Supplier Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract new Customer Contract or collective bargaining agreement Supplier Contract without the prior written consent of GTT, which consent shall not be unreasonably withheld;
(other than b) not permit any Encumbrance to encumber any of the Purchased Assets, or otherwise subject any of the Purchased Assets to any Encumbrance, except for Encumbrances incurred in connection with the ordinary course refinancing of business consistent existing debt or an additional financing, in each case where a condition to such refinancing or additional financing is the waiver, in form and substance reasonably acceptable to GTT, of all Encumbrances thereunder with past practice), respect to the sale of the Purchased Assets to GTT;
(iic) solely to the extent relating to or affecting the Customer Contracts or the Supplier Contracts: (i) pay any special bonus or special remuneration to any director or employee, except accounts payable and other obligations and liabilities only in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, ; and (ii) settle not modify the terms of, discount, setoff or accelerate the collection of any material litigation where the consideration given accounts receivable or any other debts owed to or claims held by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;Agent; and
(md) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to not take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting fail to take any action that would result in any of the representations and warranties of the Agent set forth in Article III to not continue to be true and correct as required by this Agreement.of each Closing;
Appears in 2 contracts
Samples: Sales Novation Agreement (Global Telecom & Technology, Inc.), Sales Novation Agreement (Global Telecom & Technology, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business Except as directed by HLBuyer pursuant to this Agreement, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of to occur of: (x) the Closing; or (y) the termination of this Agreement pursuant to its terms and the Closing in accordance with Section 7.1 (the “Interim Pre-Closing Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub Sellers shall, except solely to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not it would reasonably be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies expected to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do affect any of the following:
(a) Waive any share repurchase rightsCustomer Contracts or the Supplier Contracts, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and conduct its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales only in the ordinary course of business consistent with past practice, preserve intact its business organization and (B) relationships with customers, suppliers and others having business dealings with it and keep available the sale, lease or disposition services of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all each of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under present officers and employees. Without limiting the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any generality of the foregoing;, except as directed by Buyer pursuant to this Agreement, during the Pre-Closing Period, the Sellers shall each:
(ka) Except as contemplated by Section 8.15 hereundernot amend, waive, terminate, or as otherwise required by applicable Legal Requirements take any action that would constitute a breach under, any Customer Contract or pursuant to an existing Plan, policy or Company Supplier Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract new Customer Contract or collective bargaining agreement Supplier Contract without the prior written consent of Buyer, which consent shall not be unreasonably withheld (other than provided that an appropriate adjustment shall be made to the Purchase Price for any new Customer Contract that is substituted for an existing Customer Contract in accordance with Section 2.1(b) to the ordinary course of business extent that the gross margin is reduced or increased, consistent with past practicethe pricing methodology for such existing Customer Contract implied by Exhibit A hereto);
(b) not permit any Encumbrance to encumber any of the Purchased Assets, or otherwise subject any of the Purchased Assets to any Encumbrance, except for Encumbrances incurred in connection with the refinancing of existing debt or an additional financing, in each case where a condition to such refinancing or additional financing is the waiver, in form and substance reasonably acceptable to Buyer, of all Encumbrances thereunder with respect to the sale of the Purchased Assets to Buyer;
(iic) solely to the extent relating to or affecting the Customer Contracts or the Supplier Contracts: (i) pay any special bonus or special remuneration to any director or employee, except accounts payable and other obligations and liabilities only in the ordinary course of business consistent with past practices; and (ii) not modify the terms of, discount, setoff or accelerate the collection of any accounts receivable or any other debts owed to or claims held by such Seller, subject to: (iiiA) materially increase the salaries or wage rates or fringe benefits terms of Section 8.1(a) above, and (including rights B) the Sellers’ right, with Buyer’s consent (not to severance or indemnification) of its directorsbe unreasonably withheld), officers, employees or consultants, except to make modifications in the ordinary course of business consistent intended to improve the Sellers’ position with past practices;respect to Customer Contracts; and
(ld) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting fail to take any action that would result in any of the representations and warranties of the Sellers set forth in Article III to not continue to be true and correct as required by of each Closing; Nothing contained in this Section 8.1 shall give Buyer, directly or indirectly, the right to control or direct the operations of any of the Sellers and the Sellers shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective operations.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Capital Growth Systems Inc /Fl/), Asset Purchase Agreement (Global Telecom & Technology, Inc.)
Conduct Prior to Closing. 7.1 5.1 Conduct of Business by HL, the Company, Parent, Affiliated Companies and Merger SubQorus. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and or the Closing (the “Interim Period”), each of HLClosing, the Company, the Company’s Subsidiaries, Parent Affiliated Companies and Merger Sub any Subsidiaries and Qorus shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) other party shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreementwriting, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements laws and regulations (except as expressly contemplated by Schedule 7.1 hereto) where noncompliance would not have a Material Adverse Effect), pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers officers, managers and employees, and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as permitted or required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, Restructuring Documents or as set forth in on the Schedule 7.1 5.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayedother party, during the Interim Period, HLperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company, the Company’s Subsidiaries, Parent, Affiliated Companies and Merger Sub any Subsidiaries and Qorus shall not do any of the following:
(a) Waive any share stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available Except with respect to the other PartyRestructuring Agreements, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, transfer or license to any Person person or otherwise extend, amend or modify any material rights to any Intellectual Property Property, or enter into grants to transfer or license to any Person person future patent rights, other than in the ordinary course of business consistent with past practicespractices provided that in no event shall any party license on an exclusive basis or sell any Intellectual Property;
(dc) DeclareExcept for employment agreements in the ordinary course or otherwise scheduled or set forth in this Agreement including Schedule 5.1, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend stock, membership interests or distribution by a Subsidiary of the Company to the Company or another such Subsidiary)ownership interests, or split, combine or reclassify any capital stock stock, membership interests or ownership interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, membership interests or ownership interests, other than the issuance of the Gateway Shares by Qorus prior to Closing;
(ed) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities stock, membership interests or ownership interests, except repurchases of unvested shares, membership interests or ownership interests at cost in connection with respect the termination of the employment relationship with any employee pursuant to Converting Shareholdersstock option or purchase agreements in effect on the date hereof;
(fe) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities stock, membership interests or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock stock, membership interests or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other membership interests, ownership interests or convertible or exchangeable securities, securities (except as contemplated by Section 8.2 hereunderrelating to employment and similar agreements);
(f) Amend its Charter Documents;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association, association or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party Qorus or the Affiliated Companies or any Subsidiary, as applicable, or enter into any joint ventures, strategic partnerships or alliances, alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s party's ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes (except for the requirement that, transactions contemplated under the Debt Repayment Agreement as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included defined in the Proxy Statement/ProspectusSection 7.1(l) hereof);
(ih) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practicepractice and, and (B) except for the sale, lease or disposition (other than through licensing) of property or assets that which are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole)party;
(ji) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur Incur any indebtedness for borrowed money in excess of $100,000 other than re-financing existing debts, in the aggregate or guarantee any such indebtedness of another Person or Persons (other than Affiliates)person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securitiessecurities of Qorus or the Affiliated Companies or any Subsidiary, as applicable, enter into any “"keep well” " or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingforegoing other than in the ordinary course of business of such party;
(kj) Except as contemplated by Section 8.15 hereunder, Adopt or as otherwise required by applicable Legal Requirements or pursuant to an existing Planamend any employee benefit plan, policy or Company Contractarrangement, (i) adopt any employee stock purchase or materially amend any Plan (including any Plan that provides for severance)employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and agreements entered into in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practicespractices and other than for new hires in the ordinary course;
(l) (ik) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) Agreement)in excess of $100,000 other than the payment, discharge, settlement or satisfaction of any claimssatisfaction, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or liabilities recognized or disclosed in the most recent Company Financial Statements financial statements (or in the HL SEC Reportsnotes thereto) of the Affiliated Companies or of any Subsidiary or of Qorus, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company Affiliated Companies or any of its Subsidiaries Subsidiary or Qorus is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(ml) Except in the ordinary course of business consistent with past practices, modify in any material respect modify, amend or terminate (other than in accordance with its terms) any Company Material Contract of the Affiliated Companies or HL Contractany Subsidiary or Qorus, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(nm) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(on) Except in the ordinary course of business consistent with past practices, incur Incur or enter into any agreement, contract or commitment requiring such Party party to pay in excess of $1,000,000 100,000 in any 12-12 month period, other than in the ordinary course or otherwise provided in this Agreement and employment agreements which may be entered into by the Affiliated Companies or any Subsidiary;
(o) Settle any litigation in excess of $100,000;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would could be reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of such Partyparty, settle or compromise any material income Tax tax liability outside the ordinary course of business or, except as required by applicable Legal Requirementslaw, materially change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form Form, establish or establish acquire any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this AgreementSubsidiary;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiaryplans; or
(us) Agree in writing or otherwise agree agree, commit or commit resolve to take any of the actions described in Section 7.1(a5.1 (a) through (tr) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Exchange Agreement (Qorus Com Inc)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. Section 5.1 During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms ARTICLE IX hereof and the Closing (the “Interim Pre-Closing Period”), each other than (i) as contemplated hereunder, (ii) as required by applicable Law, or (iii) with the prior written consent of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(i) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business Seller shall conduct the Business in the usual, regular and ordinary course consistent with past practices, and in substantially the same manner as heretofore the Business is being conducted as of the date of this Agreement and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, accordingly shall not accelerate the payment of any Accounts Receivables or delay the payment of any accounts payable;
(ii) keep available Seller shall use reasonable commercial efforts to preserve intact its current business organization and maintain its beneficial relations with all suppliers, customers, landlords, creditors, and other Persons having business relationships with Seller, all, to the services extent Related to the Business, except changes resulting from the announcement, pendency, execution or performance of its present key officers and employeesthe transactions contemplated by this Agreement (including any adverse effect on any of the foregoing, which Seller undertakes to mitigate);
(iii) preserve its relationships with key customersSeller shall not make any sale, suppliersassignment, distributorstransfer, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and abandonment or other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements conveyance of the Securities ActTransferred Assets or any part thereof, except transactions pursuant to existing Contracts or sales in the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light ordinary course of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL Business;
(in the case of a request by the Companyiv) or the Company (in the case of a request by HL), which consent Seller shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do subject any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stockTransferred Assets, or reprice options granted under any employeepart thereof, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer indebtedness in excess of US$ 10,000 for any individual indebtedness, and US$ 50,000 for all indebtedness in the aggregate, or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstandingEncumbrance, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available suffer such to the exist, in each case other Party, or in the case of the Company and its Subsidiaries except in than Permitted Encumbrances;
(v) In connection with the promotionEmployees, hiring Seller shall not enter into any new (or firing amend any existing) employee benefit plan, program or arrangement or any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation payable or to become payable (including bonuses but excluding special one-time bonuses to be paid by Seller and salary increases following past salary decreases, which were imposed as part of a cost reduction plan), except in accordance with contractual provisions in effect as of the date hereof;
(vi) Seller shall not dispose of or permit to lapse any rights in, to or for the use of any employee Intellectual Property, or disclose to any Person who is not an Employee of Seller any Intellectual Property not in the ordinary course of business consistent with past practicethe Business, except pursuant to judicial or administrative process;
(cvii) Abandon, allow to lapse, transfer, sell, assign, or Seller shall not license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rightsthird party, other than in the ordinary course of business consistent with past practicesthe Business;
(dviii) DeclareSeller shall not cancel or compromise any material debt or claim of material value to the Business without the Business receiving a benefit of similar or greater value;
(ix) Seller will not directly or indirectly initiate, set aside solicit, encourage, enter into or pay respond to any dividends on discussions or make solicitations with regard to any other distributions Acquisition Transaction;
(whether in cash, stock, equity securities x) Seller will terminate immediately any recent or propertycurrent direct or indirect discussions or negotiations with respect to any Acquisition Transaction;
(xi) in respect of any capital stock Seller shall refrain from sharing confidential information (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, and/or (ii) information that does not constitute any Intellectual Property to potential investors and/or potential purchasers interested, directly or indirectly, in purchasing any portion of the security interests in Seller, in each case who are subject to confidentiality undertakings) concerning the Business with non-affiliated parties, and without limiting the generality of the foregoing, shall cease immediately to provide or furnish, directly or indirectly, any confidential information with respect to any Acquisition Transaction;
(iiixii) Seller shall immediately inform Buyer of any direct or indirect receipt by Seller of any inquiry in relation to any possible Acquisition Transaction;
(xiii) Seller shall refrain from terminating not for cause any Assigned Contract;
(xiv) Seller shall (i) not cancel, waive or vary in any material way the terms of any debt owing to or any claim or right for an amount involving in excess of US$ 5,000 in the aggregate, in each case solely to the extent Related to the Business, and (ii) maintain in full force and effect all Insurance Policies maintained by or for the benefit of Seller and Related to the Business and give all notices and present claims under those Insurance Policies in a timely fashion;
(xv) Seller shall make all reasonable efforts to not change or alter the physical content or character of any Inventory so as to materially increase and adversely affect the salaries nature of the Business or wage rates or fringe benefits (including rights to severance or indemnification) materially and adversely change the value of its directors, officers, employees or consultantsthe Inventory, except in the ordinary course of business consistent with past practices;
(lxvi) (i) Pay, discharge, settle Seller shall make all reasonable efforts to not cause or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior permit to the date of this Agreement) other than the payment, discharge, settlement or satisfaction exist a breach of any claims, liabilities or obligations of the representations and warranties of Seller contained in the ordinary course of business consistent with past practices this Agreement or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary Transaction Document (other than with customers and other counterparties in due to the ordinary course passage of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicabletime);
(mxvii) Except in Seller shall not take any action that could impact the ordinary course calculation of business consistent with past practicesthe adjustment to the Cash Consideration pursuant to sub-Section 2.6Section 2.6(a)(iii), modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contractwithout the prior written consent of Buyer, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;business.
(rxviii) Permit any Person Seller shall provide Buyer with a daily and weekly report with respect to exercise any all changes in Accounts Receivable, accounts payable and receipt and payment of its discretionary rights under any Plan cash Related to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;Business; and
(sxix) Make capital expenditures in excess of $500,000;
(t) Enter Seller shall not authorize or enter into any material transaction with agreement or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit commitment to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementSection 5.1.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct of Business by HLExcept as otherwise provided herein, the Company, Parenteach Seller shall, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each Seller shall cause each of HLits Subsidiaries to, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on conduct its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services each of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Acttheir respective businesses, as the case may be, in the ordinary and usual course and use reasonable best efforts to preserve its business organization and their respective business organizations and assets intact and maintain existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates. Without limiting the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light generality of the circumstances under which they were madeforegoing, not misleading. In additionfrom the date hereof until the Closing, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, contemplated in any Transaction Document or as set forth in Schedule 7.1 heretoPreviously Disclosed, each such Seller as to itself, shall not, and each Seller shall cause each of its Subsidiaries not to, do any of the following without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL)Buyer, which consent shall not be unreasonably withheld, conditioned withheld or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive issue, sell, pledge, grant, allocate, dispose of or encumber any share repurchase rightsEquity Interests in it or any of its Subsidiaries or any options, acceleratewarrants, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director conversion or other stock plans rights or authorize cash payments understandings of any kind, contingent or otherwise, to purchase any such Equity Interests other than upon exercise of any Previously Disclosed outstanding Options in exchange for any options granted under any accordance with the terms of such plansthe Partnership Equity Plans;
(b) Grant admit any material severance new partner or termination member other than in the ordinary course of its business;
(c) directly or indirectly, adjust, split, combine or reclassify any of its or its Subsidiaries' Equity Interests or change or agree to change in any manner the rights of such Equity Interests or liquidate or dissolve any Seller or any of Sellers' Subsidiaries;
(d) declare, set aside, make or pay to any dividend or other distribution in cash, stock or property in respect of its Equity Interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of its Equity Interests, PROVIDED that (i) any officer or the Public Partnership and Private Partnership shall be permitted to make distributions required by Section 4.12 and (ii) Subsidiaries of Private Partnership shall be permitted to make distributions to Private Partnership;
(e) other than in the ordinary course of its business transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any employeeof its or their material property or assets, except pursuant to applicable Legal Requirements, written agreements outstandingtangible or intangible, or Plans incur, modify, cancel or policies existing on the date hereof and as previously waive any material indebtedness or concurrently disclosed other liability or made available to the obligation;
(f) make, authorize or commit for any capital expenditures other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee than in the ordinary course of business consistent with past practiceof their respective businesses, as the case may be, or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity, provided that the investment restrictions contained in this clause (f) shall not apply to investments committed to as of the date hereof and Previously Disclosed or made in the ordinary course of business;
(cg) Abandonterminate, allow to lapseestablish, transferadopt, sell, assignenter into, or license make any new grants or awards, under any Compensation and Benefit Plan or amend or otherwise modify any Compensation and Benefit Plan in a manner that would increase the benefits provided thereunder to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rightsExecutive Officer or, other than in the ordinary course of business consistent with past practices;
(d) Declareprior practice, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunderperson;
(h) Acquire amend, supplement or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business restate its or any corporationof its Subsidiaries' Constituent Documents, partnershipas the case may be, association, or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint venturesWritten Consents which in effect amend, strategic partnerships supplement or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict restate such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/ProspectusConstituent Documents;
(i) Sellimplement or adopt any change in any respect of its accounting practices, lease, license, encumber policies or otherwise dispose principles other than as may be required by GAAP;
(j) enter into or renew or terminate any Seller Material Contract with any other Seller or any Affiliate or Subsidiary of any properties Seller, or assetsmake any amendment or modification to any such agreement if such entry, renewal, termination, amendment or modification would have a Material Adverse Effect on Public Partnership or Private Partnership;
(k) take any action that might reasonably be expected to be or to result in "an addition of a substantial new line of business" with respect to Public Partnership (within the meaning of Section 7704(g)(2) of the Code) or that might reasonably be expected to cause Public Partnership to cease to be an "electing 1987 partnership" under that section;
(l) settle any claim, action or proceeding involving any liability for money damages in excess of $1,500,000 or any material restrictions upon any of its operations;
(m) except (A) sales as and to the extent required, after consultation with outside legal counsel, in the exercise of the fiduciary obligations of the Sellers, in the case of any Investment Company, request that any action be taken by any of the Investment Company Boards, other than as contemplated by this Agreement and other than routine actions taken in the ordinary course of business consistent with past practice, and (B) the sale, lease that would not materially adversely affect such Seller or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole)Investment Company;
(jn) Except incurrences voluntarily divest itself of indebtedness management of any Client or any assets under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit management other than in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingbusiness;
(ko) Except accelerate the billing or other realizations of advisory fees payable by Clients to Private Partnership or any of its Subsidiaries or delay the payment of liabilities beyond the ordinary course of business;
(p) except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing PlanApplicable Law, policy or Company Contractincrease the compensation of any Executive Officer or, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past prior practice), (ii) pay any special bonus other current or special remuneration to any director or former employee, except in the ordinary course of business consistent with past practicesmanaging director, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee consultant of such Person is a party in his the General Partner, Public Partnership, Private Partnership or her capacity as suchtheir respective Subsidiaries, or (iii) waive enter into, adopt, amend or commit to enter into, adopt or amend any employment, consulting, severance, change of control or incentive pay agreement with or for the benefits ofbenefit of any Executive Officer or, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice practice, any other current or as contemplated by this Agreementformer employee, managing director, officer, director or consultant of any such Person;
(q) take any action or fail to take any action that would or could reasonably be expected to result in any of the representations or warranties set forth in Section 3.03 of the Agreement being or becoming untrue (subject to the standard set forth in Section 3.02); or
(r) Permit any Person authorize or enter into an agreement to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take do any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementforegoing.
Appears in 1 contract
Samples: Merger Agreement (Nvest Lp)
Conduct Prior to Closing. 7.1 5.1 Conduct of Business by HL, the Company, Parent, Affiliated Companies and Merger SubBoundless. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and or the Closing (the “Interim Period”), each of HLClosing, the Company, the Company’s Subsidiaries, Parent Affiliated Companies and Merger Sub any Subsidiaries and Boundless shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) other party shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreementwriting, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements laws and regulations (except as expressly contemplated by Schedule 7.1 hereto) where noncompliance would not have a Material Adverse Effect), pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers officers, managers and employees, and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as permitted or required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, Agreement or as set forth in on the Schedule 7.1 5.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayedother party, during the Interim Period, HLperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company, the Company’s Subsidiaries, Parent, Affiliated Companies and Merger Sub any Subsidiaries and Boundless shall not do any of the following:
(a) Waive any share stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer officer, manager or (ii) any employee, employee except pursuant to applicable Legal Requirementslaw, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed in writing or made available to the other Partyparty, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practicedate hereof;
(c) AbandonExcept with respect to the Restructuring Agreements, allow to lapse, transfer, sell, assign, transfer or license to any Person person or otherwise extend, amend or modify any material rights to any Intellectual Property Property, or enter into grants to transfer or license to any Person person future patent rights, other than in the ordinary course of business consistent with past practicespractices provided that in no event shall any party license on an exclusive basis or sell any Intellectual Property;
(d) DeclareExcept for employment agreements in the ordinary course or otherwise scheduled or set forth in this Agreement, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend stock, membership interests or distribution by a Subsidiary of the Company to the Company or another such Subsidiary)ownership interests, or split, combine or reclassify any capital stock stock, membership interests or ownership interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, membership interests or ownership interests;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities stock, membership interests or ownership interests, except repurchases of unvested shares, membership interests or ownership interests at cost in connection with respect the termination of the employment relationship with any employee pursuant to Converting Shareholdersstock option or purchase agreements in effect on the date hereof;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities stock, membership interests or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock stock, membership interests or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other membership interests, ownership interests or convertible or exchangeable securities, securities (except as contemplated by Section 8.2 hereunderrelating to employment and similar agreements);
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunderDocuments;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association, association or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party Boundless or the Affiliated Companies or any Subsidiary, as applicable, or enter into any joint ventures, strategic partnerships or alliances, alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s party's ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectusservices;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practicepractice and, and (B) except for the sale, lease or disposition (other than through licensing) of property or assets that which are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole)party;
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur Incur any indebtedness for borrowed money in excess of $100,000 in the aggregate or guarantee any such indebtedness of another Person or Persons (other than Affiliates)person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securitiessecurities of Boundless or the Affiliated Companies or any Subsidiary, as applicable, enter into any “"keep well” " or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingforegoing other than in the ordinary course of business of such party;
(k) Except as contemplated by Section 8.15 hereunder, Adopt or as otherwise required by applicable Legal Requirements or pursuant to an existing Planamend any employee benefit plan, policy or Company Contractarrangement, (i) adopt any employee stock purchase or materially amend any Plan (including any Plan that provides for severance)employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and agreements entered into in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practicespractices and other than for new hires in the ordinary course;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claimssatisfaction, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or liabilities recognized or disclosed in the most recent Company Financial Statements financial statements (or in the HL SEC Reportsnotes thereto) of the Affiliated Companies or of any Subsidiary or of Boundless, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company Affiliated Companies or any of its Subsidiaries Subsidiary or Boundless is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect modify, amend or terminate (other than in accordance with its terms) any Company Material Contract of the Affiliated Companies or HL Contractany Subsidiary or Boundless, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur Incur or enter into any agreement, contract or commitment requiring such Party party to pay in excess of $1,000,000 100,000 in any 12-12 month period, other than in the ordinary course or otherwise provided in this Agreement and employment agreements which may be entered into by the Affiliated Companies or any Subsidiary;
(p) Engage in any action that could reasonably be expected to cause the Transaction to fail to qualify as a reorganization under Section 368 of the Code or a tax-deferred exchange of property under Section 351 of the Code;
(q) Settle any litigation;
(r) Make or rescind any Tax elections that, individually or in the aggregate, would could be reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of such Partyparty, settle or compromise any material income Tax tax liability outside the ordinary course of business or, except as required by applicable Legal Requirementslaw, materially change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(qs) Form Form, establish or establish acquire any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this AgreementSubsidiary;
(rt) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiaryplans; or
(u) Agree in writing or otherwise agree agree, commit or commit resolve to take any of the actions described in Section 7.1(a5.1 (a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Exchange Agreement (Boundless Corp)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from between the date of this Agreement hereof and continuing until the earlier of Closing, (1) Parent shall have all the termination of this Agreement rights and obligations granted to it pursuant to the Patent License Agreement referred to in Section 8.2(h) hereof as though such Patent License Agreement had been executed on the date hereof, (2) Seller shall be permitted to take the Permitted Actions (as hereinafter defined) in its terms discretion and the Closing (the “Interim Period”), each 3) without in any way limiting any other obligations of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shallSeller hereunder, except as consented to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent Purchaser in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished than consents relating to the SEC (“Additional HL SEC Reports”)license or granting of access to source code described in Section 6.6(a)(ix) below, which Additional SEC Reports shall may be prepared withheld or granted in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:Purchaser's sole discretion):
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;Seller shall:
(b) Grant any material severance or termination pay to (i) any officer or (iiA) any employee, except pursuant use reasonable efforts to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on conduct the date hereof Business and as previously or concurrently disclosed or made available to the other Party, or in the case operations and affairs of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee Seller only in the ordinary and normal course of business consistent with past practice; (B) not enter into any transaction or take any action which, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of Seller contained herein or would have required disclosure under Article IV, other than transactions or actions which would not have a Material Adverse Effect upon Seller and Permitted Actions; and (C) not enter into any supply arrangements requiring the purchase of goods or services by Seller in the amount (with respect to any such arrangement) of more than $50,000 per year per arrangement or Contracts contemplating the payment to or by Seller in the amount (with respect to any such Contract) of more than $250,000 per year per Contract (arrangements and Contracts falling below the thresholds set forth in this Section 6.6(a)(i)(C), unless otherwise expressly prohibited in clauses (ii) through (x) below, being hereinafter referred to as "Permitted Actions");
(cii) Abandonuse reasonable efforts to continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect, allow take out, at the expense of the Purchaser, such additional insurance as may be reasonably requested by the Purchaser and give all notices and present all claims under all policies of insurance in a due and timely fashion (except if the failure to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than give such notices and present such claims would not have a Material Adverse Effect upon Seller);
(iii) pay and discharge the liabilities of Seller in the ordinary course of business in accordance and consistent with past practicesthe previous practices of Seller, except those contested in good faith by Seller;
(div) Declareexcept for pay increases and bonuses made to Excluded Employees, set aside not increase the compensation or pay any dividends on benefits of or make any other distributions advance (whether in cashexcluding advances for ordinary and necessary business expenses) or loan to any director, stock, equity securities officer or property) in respect employee of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockSeller;
(ev) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, not sell, authorize, pledge or otherwise encumberassign, or agree to transfer any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securitiesAssets, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire for the replacement or agree to acquire by merging betterment of obsolete or consolidating with, or by purchasing any equity interest in or a material portion worn out equipment and sales of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales inventory in the ordinary course of business consistent with past practice, and not permit any of the Assets to be subjected to any Lien (Bother than Permitted Liens);
(vi) the sale, lease not make commitments or disposition of property Contracts for capital expenditures or assets that are not material, capital additions or betterments which exceed $10,000 individually or $50,000 in the aggregate, to except such as may be involved in ordinary repair, maintenance or replacement of the business of such Party (measured with all of its Subsidiaries, taken as a whole)Assets;
(jvii) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money not acquire or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights agree to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan assets that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, would constitute Assets except in the ordinary course of business consistent with past practices;
(lviii) (i) Pay, discharge, settle not enter into any Contract or satisfy other transaction with Parent or any material claims, liabilities Affiliate of Parent or obligations (absolute, accrued, asserted any officer or unasserted, contingent director of Parent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course Affiliate of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicableParent;
(mix) Except in the ordinary course of business consistent with past practicesnot amend, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of the Contracts listed on Schedule 6.6(a)(ix) hereto, enter into any Contracts by which Seller proposes to license or otherwise provide access to its assets in any material manner source code (including by way of escrow or make any material change in accounting methods, principles or practices;
(oother similar arrangement) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in Contracts that grant any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary exclusive rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such SubsidiaryPerson; or
(ux) Agree not agree, in writing or otherwise agree or commit otherwise, to take do any of the actions described in Section 7.1(aforegoing.
(b) through (t) above. Notwithstanding Seller shall use its reasonable efforts to preserve intact the foregoing provisions Business and the property, assets, operations and affairs of Sections 7.1(d)Seller and carry on the Business and the affairs of Seller as currently conducted, (f)keep available to Seller the services of the present employees of Seller, preserve and protect its Intellectual Property and the value thereof, and (g) as set forth abovepromote and preserve for the Purchaser the goodwill of suppliers, HL hereby consents to the Company’s adoption of its Amended customers, creditors and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance others having business relations with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementSeller.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct Without limiting any other obligations of Business by HL, the Company, Parent, BCH and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by Westech under this Agreement, carry on during the Interim Period:
(i) BCH will conduct the operations of each Outsourced Unit in a reasonable and prudent manner in accordance with past practices without any material change and shall use all reasonable efforts to preserve and maintain the BCH Assets in good condition and working order;
(ii) Westech shall conduct its business operations in a reasonable and prudent manner in accordance with past practices without any material change and shall use reasonable efforts to preserve and maintain the usualWestech Assets in good condition and working order;
(iii) neither BCH nor Westech will acquire, regular and replace or dispose of assets comprising the Assets outside of the ordinary course of business and in a manner consistent with past practices, in substantially which assets comprising the same manner as heretofore conducted and in Assets may, subject to compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 heretothis Section 10.1(b)(iii) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organizationbe acquired, (ii) keep available the services replaced or disposed of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished up to the SEC close of business on the day immediately preceding the Closing Date;
(“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 heretoiv) neither BCH nor Westech will, without the prior written consent of HL (in ABS, enter into any transaction or take any action respecting the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall Outsourced Units that is not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practicebusiness;
(cv) Abandonneither BCH nor Westech will, allow without the prior written consent of ABS, make any modifications to lapsethe terms and conditions of employment of any M&P Employee or Union Employee, transfer, sell, assign, any modification of the BCH Benefit Plans or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rightsthe BCH Pension Plan, other than in the ordinary course of the business and in a manner consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (andpractices or, in the case of compensation, scheduled wage and salary adjustments which BCH has disclosed in writing to ABS;
(vi) BCH and Westech will continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect in respect of the Company and its SubsidiariesAssets; and
(vii) neither BCH nor Westech will, extensions without the prior written consent of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securitiesABS, enter into any “keep well” transaction or other agreement to maintain take any financial statement condition or enter into any arrangement having the economic effect of action which would render inaccurate any of the foregoingrepresentations and warranties of BCH under this Agreement or any of the Transaction Documents;
(kviii) Except as contemplated by Section 8.15 hereundereach of BCH and Westech will properly observe, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent fulfill and comply with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) all of its directors, officers, employees or consultants, except in obligations under the ordinary course of business consistent with past practices;Contracts and Licenses; and
(lix) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to BCH and Westech will promptly advise ABS of the date of this Agreement) other than the payment, discharge, settlement or satisfaction occurrence of any claims, liabilities circumstance or obligations in the ordinary course of business consistent with past practices development that could reasonably be expected to significantly delay or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary impede consummation of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementTransaction.
Appears in 1 contract
Samples: Master Transfer Agreement
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from From the date hereof through the Closing Date, Seller will use, conduct and operate the Purchased Assets and Facility in the ordinary course and consistent with the past practice of Seller and shall not take any action inconsistent therewith, except as otherwise expressly permitted by this Agreement and continuing until or consented to in advance in writing by Buyer. From the earlier of the termination of this Agreement pursuant date hereof to its terms and the Closing (the “Interim Period”)Date, each Seller shall give prompt written notice to Buyer of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organizationthe occurrence, or failure to occur, of any event that causes any representation or warranty of Seller contained in this Agreement to be untrue in any material respect and (ii) keep available the services any failure of its present key officers and employeesSeller to comply with or satisfy, (iii) preserve its relationships with key customersin any material respect, suppliersany covenant, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required condition or agreement to be filed complied with or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports satisfied by it under this Agreement. Such notice shall be prepared in accordance with the requirements provide a reasonably detailed description of the Securities Actrelevant circumstances and shall include the amount that Seller believes, the Exchange Act, and the Xxxxxxxx-Xxxxx Actbased on facts known to Seller, as the case may be, and would be payable by Seller pursuant to the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make indemnification provisions hereof. Without limiting the statements therein, in light generality of the circumstances under which they were madeforegoing, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingSeller shall:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change comply with the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansMaterial Contracts;
(b) Grant any material severance or termination maintain the Purchased Assets in good working order and repair (ordinary wear and tear excepted), consistent with past practice, and pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available all Taxes related to the other PartyPurchased Assets as and when they become due and payable;
(c) order, or in the case of the Company purchase and its Subsidiaries except in connection with the promotion, hiring or firing of any employee replenish inventory in the ordinary course of business business, consistent with past practice;
(cd) Abandonnot terminate, allow promote, demote or materially change the compensation or other consideration or benefits of any Seller Employee;
(e) take all actions that will be necessary and appropriate to lapsevest in and render to Buyer at Closing good and marketable title to all of the Purchased Assets free and clear of all Encumbrances;
(f) permit and provide reasonable access to Buyer to make offers of post-Closing employment to Seller Employees, transfer, and to establish relationships with Persons having business relations with Seller;
(g) promptly furnish to Buyer written notice of any environmental condition or of any Actions or notices described in Section 4.12 arising or received after the Effective Date; and promptly notify Buyer of any Material Adverse Effect;
(h) maintain in effect and good standing all Permits relating to the Purchased Assets and Assumed Liabilities;
(i) comply with all Laws applicable to the Purchased Assets and the Facility;
(j) maintain the levels and quality of Inventory existing on the date hereof;
(k) not sell, assign, or license to any Person assign or otherwise extendtransfer or dispose of any Purchased Assets, amend except for sales of Inventory in the ordinary course of business;
(l) not (i) by action or modify inaction, abandon, terminate, cancel, forfeit, waive or release any material rights of Seller, in whole or in part, with respect to the Purchased Assets or encumber any Intellectual Property of the Purchased Assets; (ii) effect any merger, business combination, reorganization or similar transaction or take any other action which reasonably could be expected to affect adversely Seller’s ability to perform in accordance with this Agreement; or (iii) settle any dispute or threatened dispute with any Governmental Authority regarding, arising from or relating to the Facility or any of the Purchased Assets;
(m) not enter into grants to transfer or license to any Person future patent rights, other than Contract except for Contracts entered into in the ordinary course of business consistent with past practicesthat satisfy each of the following requirements: (i) the Contract may be assigned to Buyer or any of its Affiliates without the consent of any party to such Contract; (ii) following Closing, Buyer or its Affiliates may terminate the Contract without cause on no more than ninety (90) days’ notice and without payment of any penalty, premium or termination payment; and (iii) the Contract does not involve the payment or receipt of more than $25,000 annually;
(dn) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
not (i) Sellamend any Assigned Contract, lease, license, encumber other than renewals or otherwise dispose extensions of any properties or assets, except (A) sales such Assigned Contracts in the ordinary course of business consistent with past practice, on terms and conditions that satisfy the requirements and limitations described in clause (Bm) the sale, lease above; or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay terminate any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Assigned Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in not create, assume or permit to exist any new Encumbrance upon any of the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month periodPurchased Assets;
(p) Make or rescind not take any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability other action outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;business; and
(q) Form or establish any subsidiary except maintain in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary full force and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementeffect all Insurance Policies.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bellicum Pharmaceuticals, Inc)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and hereof through the Closing Date:
(the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (a) Operations in the case Ordinary Course of a request by Business. Contico has and shall conduct the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on Business and its business operations only in the usual, ordinary and regular course, and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with shall exert all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices to maintain and policies preserve the Business, the Contributed Assets and the assets of the Subsidiary intact in such a manner as will cause the representations of Contico in Section 7.1 to (i) be true. Contico shall use all commercially reasonable efforts to preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) employees working in the Business and to preserve its good business relationships with key customersemployees, suppliers, distributorscustomers, licensors, licensees, contractors, distributors, business partners or others having business relationships with Contico or the Subsidiary relating to the Business, including without limitation, suppliers and others with which it has significant business dealings. During the Interim PeriodMajor Customers, HL shall file all Certifications, registration statements, reports, schedules, forms, statementsto keep in force existing agreements, and other documents required otherwise act to be filed cause fulfillment of all conditions to Closing which are reasonably within Contico's or furnished the Subsidiary's control, all in the ordinary course of business and consistent with past practices.
(b) Forbearances by Contico. Without limiting the generality of the foregoing, prior to the SEC (“Additional HL SEC Reports”)Closing, which Additional SEC Reports Contico shall be prepared in accordance with not and shall not permit the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 heretoSubsidiary to, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, take or fail to take any action that could result in Contico or the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingSubsidiary:
(ai) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant incurring any material severance liability or termination pay to obligation (iabsolute, accrued, contingent or otherwise) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on falling within the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case definition of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, Assumed Liabilities other than in the ordinary course of business consistent with past practicesbusiness;
(dii) Declareexcept to the extent consistent with practices in prior years or as set forth on Schedule 8.3(b), set aside adopting or pay amending any dividends on salary or make bonus, Employee Pension Benefit Plan, Employee Welfare Benefit Plan, Benefit Arrangement, employment or other employee benefit plan, agreement, trust, fund or other arrangement, or granting, or becoming obligated to grant, any increase in the rate of pay, commission or other distributions (whether compensation of officers, distributors, sales representatives or employees, in casheach case with respect to the Business, stock, equity securities or property) in respect of any capital stock (other than including any such dividend increase pursuant to any employee arrangement or distribution by a Subsidiary of the Company to the Company grant, instituting any welfare program or another such Subsidiary)any employee arrangement or grant, making any change in any welfare program or any employee arrangement or grant, or split, combine entering into any employment or reclassify similar agreement or arrangement with any capital stock or issue or authorize employee working for the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockBusiness;
(eiii) Purchasecreating, redeem assuming or otherwise acquire, directly or indirectly, permitting to exist any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to Lien on any of the foregoing with respect toContributed Assets or the assets of the Subsidiary, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;than Permitted Liens; or
(giv) Amend its Charter Documents in any material respectselling, except as contemplated by Section 8.2 hereunder;
(h) Acquire transferring, assigning, encumbering, mortgaging, leasing or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets otherwise disposing of, or by any other manneragreeing to sell, transfer, assign, encumber, mortgage, ease or dispose of, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquiredContributed Assets or assets of the Subsidiary other than the disposition of excess, merged, obsolete or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose worn-out items and sales of any properties or assets, except (A) sales inventory in the ordinary course of business consistent with past practice, and (B) business. Without limiting the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any generality of the foregoing;
(k) Except as contemplated by , prior to the Closing, Contico shall not and shall not permit the Subsidiary to, without the Company's prior written approval, knowingly perform any act or transaction of a type that would have been inconsistent with the representations and warranties of Contico set forth in Section 8.15 hereunder, 7.1 hereof had the same occurred prior to the date hereof or as otherwise that would have been required by applicable Legal Requirements to be set forth on a disclosure schedule hereto had such act or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced transaction taken place prior to the date of this Agreement. In addition, without limiting the generality of the foregoing provisions of this Section 8.3, Contico shall take all necessary action to:
(A) maintain its and the Subsidiary's books, records and accounts in accordance with GAAP;
(B) maintain all currently existing fire and extended coverage, worker's compensation, general and product liability and other than property and casualty insurance with respect to the paymentBusiness, discharge, settlement the Contributed Assets and the assets of the Subsidiary;
(C) apply or satisfaction of reapply for any claims, liabilities or obligations Licenses necessary for the Business in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed business; and
(D) in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date event of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property casualty loss to any of its officersthe Contributed Assets or the assets of the Subsidiary, directorsto the extent permitted under applicable contracts, partnersmortgages, shareholdersdeeds of trust, managersleases, members agreements or other Affiliates other than (i) instruments, transfer any received insurance proceeds, or the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company rights thereto, to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any as part of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementContributed Assets.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from Between the date of this Agreement and continuing until the earlier of Closing Date, Seller, with respect to the termination of this Agreement pursuant to its terms Purchased Assets and the Closing (the “Interim Period”)Business, each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (will operate in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course of business, consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly described in Schedule 4.01 or as otherwise contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealingsthis Agreement. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements In furtherance of the Securities Actforegoing, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which Seller will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do refrain from undertaking any of the followingfollowing without first obtaining (or being deemed to have obtained) Buyer's prior written consent:
(a) Waive modifying, amending or terminating any share repurchase rightsof the Assumed Contracts, accelerate, amend or (except as specifically provided for herein) change in this Agreement or in the period ordinary course of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansbusiness;
(b) Grant any material severance waiving, releasing, selling or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify assigning any material rights or claims with respect to any Intellectual Property or enter into grants to transfer or license to any Person future patent rightsthe Purchased Assets, other than in the ordinary course of business consistent with past practicesbusiness;
(c) modifying, amending or terminating any Permit under which Seller operates the Business;
(d) Declare, set aside entering into any agreements which would materially and adversely restrict the manner in which either Seller currently performs under the Assumed Contracts or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of Buyer is anticipated to perform under the Company to Assumed Contracts following the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockClosing;
(e) Purchaseincreasing the rates of salary or bonus compensation payable or to become payable to any Designated Employee, redeem except: (i) one-time annual increases not in excess of 5% per annum or otherwise acquire, directly (ii) as disclosed or indirectly, any shares of capital stock contemplated in this Agreement or other equity securities or ownership interests, except with respect to Converting Shareholders;the Schedules hereto; or
(f) Issueentering into any executory agreement, deliver, sell, authorize, pledge commitment or otherwise encumber, or agree undertaking to do any of the activities prohibited by the foregoing provisions. With respect to any of the foregoing with respect toactions, any shares Buyer's prior written consent will be deemed given if Buyer does not deliver a written refusal to Seller within five (5) Business Days following Seller's written request for such consent by email to Xxx Rising, Xxxx Xxxxxxxx or Xxxxx Xxxxx of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated Buyer. Any response by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated Buyer’s representative shall be made by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, email to the business representative of Seller making the request for such Party or enter into any joint venturesconsent, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability with a copy to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, Xxx Xxxxxxx and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementXxxx Xxxx.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from From the date of this Agreement until Closing, the Vendors shall, other than as contemplated in this Agreement, cause the DMI Group, and continuing until the earlier of the termination of this Agreement make all reasonable commercial efforts to cause CPP, including pursuant to its terms rights under the Joint Venture Agreement, to conduct the Business and the Closing (operations and affairs of the “Interim Period”)Business Group only in the Ordinary Course and, each without limiting the generality of HLthe foregoing, the CompanyVendors shall cause the DMI Group, and make reasonable commercial efforts to cause CPP, including pursuant to its rights under the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Joint Venture Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingto:
(a) Waive any share repurchase rightsconduct and carry on the Business in the Ordinary Course, accelerateand use commercially reasonable efforts to preserve intact the Business and all business assets, amend reasonable wear and tear excepted, including the conduct of all scheduled and unscheduled maintenance work in the Ordinary Course or (except as specifically provided for herein) change necessary to keep all of the period assets of exercisability the Business operating in substantially the same condition as they are on the date of options or restricted stockthis Agreement, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any whether the costs of such planswork are expensed or capitalized;
(b) Grant not do any material severance act or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case thing of the Company and its Subsidiaries except kind described in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceSection 4.1(q);
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than use commercially reasonable efforts in the ordinary course Ordinary Course to maintain the Inventory and other consumables of business the Business at customary levels consistent with past practicespractice and maintain its historical credit practices as regards the sale of the Inventory;
(d) Declarenot purchase, set aside sell, lease, license, mortgage, pledge or pay any dividends on otherwise acquire or make any other distributions (whether in cash, stock, equity securities or property) in respect dispose of any capital stock (other than any such dividend properties, rights or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu assets of or in substitution connection with the Business, except for any capital stockInventory and equipment purchased, sold or otherwise disposed of in the Ordinary Course and except for purchases as required to remain in compliance with applicable Laws;
(e) Purchasenot enter into, redeem or otherwise acquire, directly or indirectlybecome obligated under, any shares of capital stock Material Contract or other equity securities or ownership interests, except commitment with respect to Converting Shareholdersthe Business outside of the Ordinary Course or any contract or commitment that obligates the Corporation to deliver any pulp after December 31, 2018, unless such contract or commitment is terminable by the Corporation on no more than 30 days’ notice without penalty or is permitted pursuant to the terms of the Marubeni Agency Agreement as amended to reflect the terms in Section 5.3(b) of the Disclosure Schedule;
(f) Issue, deliver, sell, authorize, pledge not enter into any agreement or otherwise encumber, or agree to commitment with any of the foregoing with respect toVendors or their respective Affiliates, any shares which will not be terminated on or before the Closing Date without payment, penalty or liability of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements member of the acquired, merged, Business Group or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiaryVendors, as applicable;
(mg) Except in not grant any Encumbrance, other than a Permitted Encumbrance, on any asset of the ordinary course of business consistent with past practices, modify in Business Group or cancel any material respect debts or terminate waive any material claims or rights pertaining to the Business or the Business Group;
(h) not make (other than in accordance with its termsa Tax Return contemplated by paragraph (i) below), revoke or change any Company Material Contract Tax election or HL Contractmethod of Tax accounting, as applicablefile an amended Tax Return or a claim for refund of Taxes, enter into any ruling request, closing agreement, or waivesimilar agreement with respect to Taxes, delay settle or compromise any liability with respect to Taxes, consent to any claim or assessment relating to Taxes, or waive the exercise ofstatute of limitations for any such claim or assessment;
(i) not file any income Tax Return without first presenting a complete draft thereof to the Purchaser, release at least ten days prior to the expected timely filing thereof, and obtaining Purchaser’s written approval of such Tax Return, provided however, that the Purchaser’s failure to provide approval prior to the filing deadline of any Tax Return which results in the Vendors not being able to file such Tax Return on or assign before such filing deadline shall not constitute a breach by the Vendors of its obligation pursuant to this Agreement to timely file such Tax Return;
(j) not hire any material rights new employee except in the Ordinary Course to replace an employee whose employment has terminated, and not enter into an employment agreement with any such replacement employee, except in the Ordinary Course;
(k) use reasonable commercial efforts to preserve intact its business, organization and goodwill, to keep available the employees of the Business as a group and to maintain satisfactory relationships with suppliers, distributors, customers and others with whom any member of the Business Group have business relationships;
(l) cause its current insurance policies not to be cancelled or claims thereunderterminated or any other coverage thereunder to lapse, unless simultaneously with such terminations, cancellation or lapse, replacement policies underwritten by insurance companies providing the current coverage or insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies, and where possible, for substantially similar premiums, are in full force and effect;
(m) reasonably promptly advise the Purchaser first orally and then in writing of the occurrence of any Material Adverse Change in respect of any member of the Business Group or the Business or of any facts that come to their attention which would cause any of the Vendors’ representations and warranties herein contained to be untrue such that the Vendors would be unable to meet the closing conditions herein;
(n) Except as required by law, U.S. GAAP, not amend or IFRS, revalue modify the constating or organizational documents of any member of its assets in any material manner the DMI Group or make any material change in accounting methods, principles or practices;the Joint Venture Agreement; and
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise not agree or commit to do or otherwise take any action inconsistent with any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementforegoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Mercer International Inc.)
Conduct Prior to Closing. 7.1 Conduct (a) Bankruptcy Court Approval of Sale Procedures, Breakup Fee and Deposit Agreement. Within ten (10) Business by HLDays of the Execution Date, the CompanyBankruptcy Court shall have approved the Joint Motion: (A) For Approval of Bid Procedures in the Event of Competing Bids, Parent, (B) Payment of Termination Fee and Merger Sub. During the period from the date (C) Approval of this Deposit Agreement filed jointly by Seller and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing Buyer (the “Interim PeriodSale Procedure Motion”) requesting the entry of an order in form and substance acceptable to Buyer and Seller (the “Procedure Order”), each of HLwith specific required terms and conditions, including, but not limited to, (i) approving the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as procedures set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially Sale Procedure Motion for the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies Seller to (i) preserve substantially intact its present business organizationaddress any competing bids submitted for the purchase of the Assets, (ii) keep available establishing procedures for an auction (the services of its present key officers “Auction”) at which higher and employeesbetter offers to purchase the Assets may be presented to Seller, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licenseesproviding that if Seller receives from a third party a higher and better offer to purchase the Assets at the Auction, and others with which it has significant business dealings. During such third party offer is subsequently approved by the Interim PeriodBankruptcy Court and closes as provided by its terms, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and then Buyer will be entitled to receive from Seller a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other documents required to be filed or furnished to immediately available good funds in the SEC amount of $200,000 (the “Additional HL SEC ReportsBreak-Up Fee”), which Additional SEC Reports payment shall be prepared in accordance made to Buyer concurrently with the requirements consummation of such third party sale, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed “financially qualified” by Seller, (v) no prospective purchaser will be permitted to bid at the Auction unless such prospective purchaser has been determined by Seller in good faith to be capable of completing the purchase of the Securities ActAssets on or before the Outside Date, (vi) no prospective purchaser who bids for the Exchange ActAssets at the Auction shall be entitled to purchase the Assets unless such prospective purchaser offers to purchase the Assets for consideration which is at least $200,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration, and the Xxxxxxxx-Xxxxx Act, assumed liabilities) and otherwise on terms at least as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required favorable to be stated therein or necessary to make the statements therein, Seller as those set forth in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements(vii) after any initial overbid, or as set forth all further overbids must be in Schedule 7.1 hereto, without the prior written consent increments of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parentat least $100,000, and Merger Sub shall not do any of (viii) approving the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments specific terms and conditions regarding contained in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date Section 6 hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementDeposit.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct MMA hereby covenants and agrees with Buyers that, prior to the Closing, unless the prior written consent of Business by HL, the Company, Parent, MMA Buyer shall have been obtained and Merger Sub. During the period from the date of except as otherwise expressly contemplated in this Agreement or requested by MMA Buyer (and continuing until the earlier of the termination of this Agreement pursuant agreed to its terms and the Closing (the “Interim Period”by MMA), MMA, RTS, each of HL, the Company, the Company’s Subsidiaries, Parent Subsidiary and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) each Fund shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on operate its business only in the usual, regular and ordinary course consistent and in accordance with past practicespractice and conduct its business in a manner comporting with the standards of service quality and compliance heretofore met by it, in substantially the same manner as heretofore conducted and shall use its best efforts to operate its business in compliance in all material respects with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) laws and shall use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organizationorganization and assets and maintain its rights, franchises and business and customer relations necessary to run the business as currently run. To the extent this Section 5.1 (ii) keep available the services or any of its present key officers and employees, (iiisubsections hereinafter set forth) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished is applicable to the SEC (“Additional HL SEC Reports”)Funds, which Additional SEC Reports MMA's obligation shall be prepared in accordance limited to not taking any action (except as directed by the governing board of a Fund) or recommending that the Funds take any action inconsistent with the requirements following covenants and agreeing to promptly advise MMA Buyer of any action taken by a Fund's officers or governing board that would be inconsistent with the Securities Actfollowing covenants. From the date hereof until the Closing, MMA shall ensure, subject to the Exchange Actforegoing, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, that without the prior written consent of HL (in the case of a request MMA Buyer and except as otherwise expressly contemplated by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingthis Agreement:
(a) Waive MMA, RTS, each Subsidiary and each Fund shall not incur any share repurchase rightsindebtedness for borrowed money, accelerateexcept in the ordinary course of business consistent with prior practice, amend issue or (except as specifically provided for herein) change the period of exercisability of options sell any debt securities or restricted stock, or reprice options granted under prepay any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansdebt;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeeMMA, RTS, each Subsidiary and each Fund shall not, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case ordinary course of business consistent with past practice, sell, transfer, lease, mortgage, pledge or hypothecate any of its properties or assets, tangible or intangible; provided, that in any event RTS shall not sell, transfer, lease or encumber the Company Owned Real Estate or any interest therein or portion thereof or enter into any contract, agreement or understanding to do the same;
(c) MMA, RTS, each Subsidiary and each Fund shall not, except where required in the exercise of its Subsidiaries except fiduciary obligations, take any action (other than in connection with the promotiontransactions contemplated hereby), hiring other than actions in the ordinary course of business;
(d) MMA, RTS, each Subsidiary and each Fund shall not forgive or firing of cancel any employee debts or claims, or waive any rights, or discharge any lien or liability except for fair value or in the ordinary course of business consistent with past practice;
(ce) AbandonMMA, allow to lapseRTS and each Subsidiary shall not recommend that any Fund change its investment objective, transfer, sell, assignpolicies, or license restrictions;
(f) MMA, RTS, each Subsidiary and each Fund shall not, except as provided in Section 5.1(l) or as may be required by applicable law and after notice to MMA Buyer, adopt, or amend in any Person material respect, any employment, collective bargaining, bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of employees or officers of MMA, RTS, any Subsidiary or the Directors/Trustees of each Fund;
(g) except (i) such changes or terminations as may be proposed by MMA Buyer (and agreed to by MMA), (ii) as may be required by applicable law and after notice to Buyers, (iii) as expressly provided by this Agreement or (iv) any renewal of an expiring agreement for which MMA, RTS, each Subsidiary and each Fund shall obtain the prior consent of MMA Buyer which consent shall not be unreasonably withheld, MMA, RTS, each Subsidiary and each Fund shall not amend or terminate the Partnership Agreement, any Real Estate Lease, any agreement or contract involved in the operation of the Funds, any material agreement, Articles of Incorporation, Declaration of Trust or bylaws (as the case may be) or any other organizational documents, or file any tax election, claim for refund on an amended return (in the case of RTS or RIB only), or request for ruling or determination with any taxing authority;
(h) MMA, RTS, each Subsidiary and each Fund shall not change in any respect its accounting practices, policies or principles, except as may be required by applicable law or GAAP and after notice to MMA Buyer;
(i) MMA, RTS, each Subsidiary and each Fund shall not incur any liability or obligation (whether absolute, accrued, contingent or otherwise extendand whether direct or as guarantor or otherwise with respect to the obligations of others), amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than except in the ordinary course of business consistent with past practicespractice or as otherwise permitted hereunder; provided, however, that in no event shall any of RTS or the Funds incur any such debt obligations in an amount in excess of $25,000 without providing prior notice to MMA Buyer (other than deposit accounts or Federal Home Loan Bank advances with a term of one year or less);
(dj) DeclareMMA, set aside or pay any dividends on or RTS, each Subsidiary and each Fund shall not make any other distributions material changes in policies or practices relating to the sale of its shares (whether including accounting practices relating thereto) or in cashpolicies or practices of employment unless required by applicable law or GAAP and after notice to MMA Buyer;
(k) MMA, stockRTS, equity securities each Subsidiary and each Fund shall not enter into any type of business not conducted as of the date of this Agreement or propertycreate or organize any subsidiary or enter into or participate in any joint venture or partnership;
(l) MMA, RTS, each Subsidiary and each Fund shall not make any change in the compensation payable or to become payable to any of its representatives, employees, agents or independent contractors except with respect to its employees (exclusive of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company Sellers) for (i) normal annual increases in accordance with past practices or (ii) annual bonus payments or arrangements in the ordinary course of business not to exceed $200,000 per year in the Company or another such Subsidiary)aggregate;
(m) RTS, or each Subsidiary and each Fund shall not adjust, split, combine or reclassify any capital stock except as set forth in Section 7.12; set ------------ any record or issue or authorize payment dates for the issuance payment of any other securities dividends or distributions, or pay any dividend or make any distribution, on its capital stock except in respect ofthe ordinary and usual course of business consistent with past practice; directly or indirectly redeem, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity securities or ownership interests, (except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any the Funds as required by the provisions of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests Investment Company Act) or any securities or obligations convertible into or exchangeable for any shares of its capital stock or grant any stock appreciation rights or grant any individual, corporation or other equity securities or ownership interests, or subscriptions, rights, warrants or options entity any right to acquire any shares of its capital stock stock; MMA shall not make any transfer or other equity securities or ownership interests or any securities convertible into or exchangeable for shares distribution of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments its property to the Sellers in respect of any character obligating it Interests except to issue any such sharesthe extent and in the manner provided in Section 1.3 and except that MMA shall not be ----------- prohibited from redeeming, equity securities purchasing or otherwise acquiring the Limited Partnership Interests of the Sellers other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderthan the Principal Sellers;
(gn) Amend its Charter Documents in any material respectMMA, RTS, each Subsidiary and each Fund shall not, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales transactions in the ordinary course of business consistent with past practice, and (B) the salemake any material acquisition or investment either by purchase of stock or securities, lease merger or disposition consolidation, contributions to capital, property transfers, or purchases of any property or assets that are not materialof any other individual, individually corporation or in the aggregateother entity other than a wholly-owned subsidiary thereof; provided, however, that, notwithstanding anything to the business contrary contained herein, none of such Party (measured with all of its SubsidiariesMMA, taken RTS or the Subsidiaries shall make any acquisition that would require it or MMA Buyer to register as a whole)bank holding company under the Bank Holding Company Act of 1956, as amended;
(jo) Except incurrences RTS shall not enter into, renew or terminate any contract or agreement, other than loans, deposit accounts and Federal Home Loan Bank advances with a term of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit one year or less made in the ordinary course with employees of business, that calls for aggregate annual payments in excess of $50,000 individually or $200,000 in the aggregate and among the Company and which is not either (i) terminable at will on 60 days or less notice without payment of a penalty or (ii) has a term of one year or less; or make any material change in or terminate any of its Subsidiaries)leases or contracts, incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue renewals of contracts or sell any debt securities leases for a term of one year or options, warrants, calls or other rights less without materially adverse changes to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingterms thereof;
(kp) Except as contemplated by Section 8.15 hereunderRTS shall not make any capital expenditures in excess of $25,000 in the aggregate without the prior written consent of MMA Buyer which will not be unreasonably withheld, other than expenditures necessary to maintain existing assets in good repair;
(q) RTS shall not make application for the opening, relocation or closing of any, or as otherwise required by applicable Legal Requirements open, relocate or pursuant to an existing Planclose any, policy branch or Company Contract, loan production office;
(ir) adopt RTS shall not make or materially amend acquire any Plan (including loan or issue a commitment for any Plan loan except for loans and commitments that provides for severance), or enter into any employment contract or collective bargaining agreement (other than are made in the ordinary course of business consistent with past practice), (ii) pay practice or issue or agree to issue any special bonus letters of credit or special remuneration to otherwise guarantee the obligations of any director or employee, other persons except in the ordinary course of business consistent with past practicesin order to facilitate the sale of real property acquired by foreclosure or deed in lieu of foreclosure;
(s) RTS shall not foreclose upon or otherwise acquire (whether by deed in lieu of foreclosure or otherwise) any real property without the prior written consent of MMA Buyer which will not be unreasonably withheld (other than 1-to-4 family residential properties in the ordinary course of business);
(t) RTS shall not change its investment securities portfolio policy, or the manner in which the portfolio is classified or reported except as required by applicable law or GAAP;
(iiiu) materially increase RTS shall not engage in the salaries business of making or wage rates make any Veterans' Administration guaranteed or fringe benefits Federal Housing Administration insured mortgage loans;
(including rights v) RTS shall not enter into any contracts or agreements or amendments or supplements thereto pertaining to severance any further development of specialized software without the prior written consent of MMA Buyer which will not be unreasonably withheld;
(w) RTS shall maintain its loan loss reserves in an amount that is not less than the amount reflected on the 1998 RTS Financial Statements to the extent permitted by GAAP;
(x) MMA, RTS, each Subsidiary and each Fund shall not enter into any agreement, commitment or indemnification) other transactions or make any amendment or modification to any such agreement or agree or commit to do any of its directors, officers, employees or consultants, except the foregoing unless it is entered into in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes law or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person GAAP and after notice to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementMMA Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)
Conduct Prior to Closing. 7.1 Conduct Without in any way limiting any other obliga- tions of Business by HLthe Company or Xxxxxx hereunder, the Company, Parent, and Merger Sub. During during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant hereof to its terms and the Closing (the “Interim Period”), each of HLDate, the Company, the Company’s Subsidiaries, Parent and Merger Sub Company shall, except to the extent that HL (in the case of a request by the Company) or and Xxxxxx shall cause the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingto:
(a) Waive not declare or pay any share repurchase rights, accelerate, amend dividend or (except as specifically provided for herein) change the period make any other form of exercisability distribution or return of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such planscapital to its shareholders;
(b) Grant not enter into any material severance Contract or termination pay agreement with any Person not dealing at arm’s length with the Company; for further clarity, it is expressly understood and agreed that, notwithstanding anything to (i) any officer or (ii) any employeethe contrary contained herein, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing as ex- pressly set forth on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case Section 5.2 of the Company Disclosure Schedule, the Com- pany shall not agree to, incur or assume in any manner, and its Subsidiaries except Xxxxxx shall not im- pose upon or allocate to the Company in connection with any manner, and the promotionCompany shall not discharge or repay, hiring any additional loans, notes or firing other payables or liabilities (or increase the amounts outstanding under any of any employee the foregoing that are existing as of the date hereof) owed by the Company to Xxxxxx, including Intercompany Debt; provided that the Company shall be permitted to incur up to KRW 2,263,442,912 in Intercompany Debt solely in the ordinary course of business consistent with past practice;practice on terms no less favorable to the Company than any Intercompany Debt existing as of the date hereof, with the proceeds from such In- tercompany Debt to be used solely for Permitted Expenditures.
(c) Abandonuse all commercially reasonable efforts to conduct the Business and its operations and affairs only in the ordinary course of business, allow to lapseexcept as otherwise provided in the Initial Development Work Program, transferincluding maintaining the books, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than ac- counts and records of the Business in the ordinary course of business consistent and consis- tent with past prudent business practices;
(d) Declareuse all commercially reasonable efforts to preserve intact the Business and the property, set aside or pay any dividends on or make any other distributions (whether in cashassets, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary operations and affairs of the Company and to carry on the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockBusi- ness as currently conducted;
(e) Purchasenot split, redeem consolidate or otherwise acquirereclassify any of the shares in the capital of the Company nor undertake any other capital or corporate reorganization, directly including mergers, transfers of or indirectly, any shares the creation of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersnew Subsidiaries;
(f) Issuenot issue any securities, deliverother than in accordance with Acquisition Rights issued and outstanding as of the date hereof, selland not issue Acquisition Rights, authorize, pledge or otherwise encumber, or agree other than Acquisition Rights unrelated to any securities of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options Company and pursuant to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereundervalidly adopted employee compensation plans;
(g) Amend its Charter Documents not amend or modify in any material respectrespect any of its organizational documents, except other than as expressly contemplated by Section 8.2 hereunder;this Agreement; and
(h) Acquire not redeem, purchase or agree arrange to acquire by merging or consolidating with, or by purchasing purchase any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Subscription Agreement
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on between the date hereof and as previously or concurrently disclosed or made available the Closing, Sellers shall:
(i) use reasonable efforts to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee conduct ITXC's eCommerce Business in the ordinary course of business consistent with past practice;
(cii) Abandonpay and discharge the liabilities of ITXC's eCommerce Business in the ordinary course of business in accordance and consistent with the previous practices of ITXC, allow to lapseexcept those contested in good faith by ITXC;
(iii) except for pay or benefit increases, transfer, sell, assign, advances or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than bonuses made in the ordinary course of business consistent with past practices, not increase the compensation or benefits of or make any advance (excluding advances for ordinary and necessary business expenses) or loan to any employee employed in the operation of ITXC's eCommerce Business;
(div) Declarenot sell, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary)assign, or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to transfer any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securitiesAssets, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire for the replacement or agree to acquire by merging betterment of obsolete or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) worn out equipment and sales in the ordinary course of business consistent with past practice, and not permit any of the Assets to be subjected to any Lien (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a wholeother than Permitted Liens);
(jv) Except incurrences not materially amend, materially modify or terminate any of indebtedness under the Company’s existing credit facilities (andagreements listed on Schedule 6.6(a)(v) ----------------- annexed hereto, enter into any agreements by which Sellers propose to license or otherwise provide access to any source code included in the case Assets or enter into any material agreement relating to ITXC's eCommerce Business;
(vi) not enter into any transaction outside of the Company and its Subsidiaries, extensions of credit in the ordinary course of business with respect to ITXC's eCommerce Business;
(vii) not take any action with respect to ITXC's eCommerce Business or omit to take any action with respect to ITXC's eCommerce Business which action or omission would result in a breach of any of the representations and warranties set forth in Article IV, other than a breach which, together with any other such breaches, would not constitute an ITXC Material Adverse Effect; and
(viii) not agree, in writing or otherwise, to do any of the foregoing.
(b) Each of the Sellers shall use its reasonable efforts to preserve intact ITXC's eCommerce Business and carry on ITXC's eCommerce Business, keep available to ITXC's eCommerce Business the services of the present employees of ITXC's eCommerce Business, preserve and among protect the Company eCommerce Intellectual Property Rights and its Subsidiaries)the value thereof, incur any indebtedness for borrowed money and promote and preserve the goodwill of suppliers, customers, creditors and others having business relations with ITXC's eCommerce Business.
(c) During the period between the date hereof and the Closing, eStara shall not:
(i) amend eStara's Charter, other than as contemplated herein, or guarantee submit any such indebtedness amendment to the shareholders of another eStara;
(ii) amend its by-laws;
(iii) adopt or amend any benefit plan pursuant to which any Person or Persons may acquire any equity securities of eStara;
(iv) issue any shares of its capital stock, other than Affiliates), issue upon the exercise or sell conversion of any debt securities or stock options, warrantswarrants or convertible securities described in Section 5.4 ----------- of the eStara Disclosure Schedule and except as contemplated hereby;
(v) grant any options, calls warrants or other rights to acquire equity securities of eStara other than pursuant to benefit plans described in Section 5.3(d) of the eStara ------------- Disclosure Schedule;
(vi) pay any debt securities, dividend or other distribution with respect to any equity securities of eStara;
(vii) redeem or otherwise purchase any equity securities of eStara;
(viii) enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability transaction outside the ordinary course of eStara's business or, or enter into any new line of business except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiaryhereby; or
(uix) Agree agree, in writing or otherwise agree or commit otherwise, to take do any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementforegoing.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct of Business by HLFrom the Effective Date until the Closing Date, the Company, Parent, and Merger Sub. During the period from the date of except as otherwise provided in this Agreement and continuing until the earlier of the termination of this Agreement pursuant or consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing by Buyer (which consent shall not be unreasonably withheld, conditioned withheld or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement), carry on its business Sellers shall conduct the Business in the usualordinary course, regular consistent with past practice, and ordinary course Sellers shall use their best efforts to maintain and preserve intact the Business, the Center, the Assets, and the relationships with the Service Providers, Material Suppliers, patients, employers, lenders, regulators and others having commercial relationships with the Company. Without limiting the foregoing, from the Effective Date until the Closing Date, Sellers shall, in a manner consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change Preserve and maintain each of the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansPermits;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeePay the debts, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof taxes and as previously or concurrently disclosed or made available to the other Party, or in the case obligations of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceBusiness when due;
(c) AbandonXxxx for goods sold and services rendered, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practicesand collect accounts receivable on account thereof;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary Maintain the Center and tangible assets of the Company Business in the same condition as they were on the Effective Date, subject to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockreasonable wear and tear;
(e) PurchaseMaintain the Contracts in full force and effect without modification, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersand timely perform all obligations thereunder;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any Maintain the books and records of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderBusiness;
(g) Amend its Charter Documents in any material respectComply with all laws applicable to the Center, except as contemplated by Section 8.2 hereunderthe Business and the ownership or use of the Assets;
(h) Acquire or agree Not take any action, commit to acquire by merging or consolidating withtake any action, or by purchasing permit any equity interest in or a material portion action to be taken that could reasonably be anticipated to (i) cause any of the assets ofchanges, events or conditions requiring disclosure in Schedule 2.24 as of the Closing Date to occur or (ii) prevent any Sellers Party from performing or cause any Sellers Party not to perform one or more covenants required hereunder to be performed by such Sellers Party; and
(i) Promptly notify Buyer of any fact, circumstance, event or action the existence, occurrence or taking of which has had, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree could reasonably be expected to acquire outside the ordinary course of business any assets which are materialhave, individually or in the aggregate, to a material adverse effect on the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights Interests or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementBusiness.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (American Caresource Holdings, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business by HLThe Company covenants and agrees as to itself and its Subsidiaries that, the Company, Parent, and Merger Sub. During the period from after the date of this Agreement hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except prior to the extent that HL Effective Time (in the case of a request by the Company) or the Company (in the case of a request by HL) unless Parent shall otherwise consent expressly approve in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or and except as expressly set forth in Section 6.1 of the Company Disclosure Schedule 7.1 hereto or as otherwise expressly contemplated by this Agreement):
(a) the business of the Company and its Subsidiaries shall be conducted in the ordinary and usual course and, carry on to the extent consistent therewith, the Company and its Subsidiaries shall use their respective commercially reasonable efforts, to preserve its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve organization substantially intact and maintain its present business organization, (ii) keep available the services of its present key officers existing relations and employees, (iii) preserve its relationships goodwill with key customers, suppliers, distributors, licensorsstrategic partners, licenseescreditors, lessors, employees and others other Persons with which it the Company or any of its Subsidiaries has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansrelations;
(b) Grant any material severance or termination pay to it shall not (i) issue, sell, pledge, dispose of or encumber any officer or capital stock owned by it in any of its Subsidiaries; (ii) any employeeamend its articles of incorporation or by-laws; (iii) split, except pursuant to applicable Legal Requirements, written agreements outstanding, combine or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case reclassify its outstanding shares of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
capital stock; (civ) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declaredeclare, set aside or pay any dividends on or make any other distributions (whether dividend payable in cash, stock, equity securities stock or property) property in respect of any capital stock (other than any such dividend dividends from its direct or distribution by a Subsidiary of the Company to the Company indirect wholly owned Subsidiaries; or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(ev) Purchasepurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable or exercisable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of its capital stock stock, except (A) pursuant to the exercise of Company Equity Rights that are outstanding as of the date of this Agreement or other equity securities pursuant to the exercise of Company Stock Options, (B) upon conversion of the Preferred Shares (including those issuable upon exercise of Company Equity Rights outstanding as of the date of this Agreement) or ownership interests (C) the repurchase of Restricted Shares at their original issue price in connection with the termination of a holder’s employment with, or services to, the Company;
(c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it class or any Voting Debt or any other property or assets (other than shares of Company Common Stock issuable pursuant to issue options outstanding on the date hereof under the Company Stock Plans); (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of, abandon, cancel, surrender or allow to lapse or expire or encumber any such shares, equity securities material property or material assets (including capital stock of any of its Subsidiaries) or business other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderthan licenses of Company Products entered into in the ordinary course of business;
(gd) Amend neither it nor any of its Charter Documents in Subsidiaries shall restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or otherwise enter into any agreement or arrangement imposing material respectchanges or restrictions on the operation of its assets, except as contemplated by Section 8.2 hereunderproduct lines or businesses, or its interests therein, or adopt resolutions providing for or authorizing any of the foregoing;
(he) Acquire or agree to neither it nor any of its Subsidiaries shall acquire (i) by merging or consolidating with, or by purchasing any equity interest in all or a material substantial portion of the assets of or any stock of, or by any other manner, any business or any corporation, partnership, associationjoint venture, limited liability company, association or other business organization or division thereof, or otherwise acquire (ii) any material assets or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assetsbusinesses, except (A) sales purchases of inventory and raw materials in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole)business;
(jf) Except incurrences neither it nor any of indebtedness under the Company’s existing credit facilities (andits Subsidiaries shall adopt or implement any shareholder rights plan, “poison pill” anti-takeover plan or other similar plan, device or arrangement that, in each case, is applicable to Parent or any of its Affiliates, the case Agreement or any of the Company and transactions contemplated by this Agreement;
(g) neither it nor any of its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), Subsidiaries shall (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliatespursuant to equipment lease borrowings in the ordinary course of business), issue (ii) issue, sell or sell amend any debt securities or options, warrants, calls warrants or other rights to acquire any debt securitiessecurities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing;
, (kiii) Except as contemplated by Section 8.15 hereundermake any loans, advances (other than routine travel advances to employees of the Company and its Subsidiaries in the ordinary course of business, not exceeding $10,000 for any individual employee for any single trip and not exceeding $30,000 in the aggregate) or capital contributions to, or as otherwise required by applicable Legal Requirements investment in, any other Person, other than the Company or pursuant to an existing Plan, policy any of its direct or Company Contractindirect wholly owned Subsidiaries, (iiv) adopt or materially amend any Plan (including any Plan that provides for severance)other than in the ordinary course of business, or enter into any employment contract hedging agreement or collective bargaining other financial agreement or arrangement designed to protect the Company or its Subsidiaries against fluctuations in commodities prices or exchange rates, or (v) other than in the ordinary course of business consistent with past practice, delay the payment or discharge of accounts payable or other payables or accelerate the collection of accounts receivable or other receivables;
(h) neither it nor any of its Subsidiaries shall, without the prior written approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed), make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of $100,000 in the aggregate for the Company and its Subsidiaries, taken as a whole, other than as set forth in the Company’s budget for capital expenditures previously made available to Parent or the specific capital expenditures disclosed in Section 6.1(h) of the Company Disclosure Schedule;
(iii) pay neither it nor any special bonus of its Subsidiaries shall make any material changes in accounting methods, principles or special remuneration to practices, except insofar as may have been required by a change in GAAP or, except as so required, change any director assumption underlying, or employeemethod of calculating, any bad debt, contingency or other reserve;
(j) neither it nor any of its Subsidiaries shall, except in the ordinary course of business consistent with past practicespractice, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directorsenter into, officersrenew, employees or consultantsmodify, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manneramend, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunderunder, any Material Contract; provided, however, that nothing herein shall permit the Company or any of its Subsidiaries to (1) enter into any Contract of the type specified in Section 4.6(a)(iii) or (xiv) to the extent such Contract would survive after the Closing or modify or amend in a manner adverse to the Company or any of its Subsidiaries any existing Contract of the type specified in Section 4.6(a)(iii) or (xiv), or (2) enter into, renew, modify, amend, terminate, waive delay the exercise of, or release or assign any material rights or claims under, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is bound by or subject;
(nk) Except as required by law, U.S. GAAP, or IFRS, revalue neither it nor any of its assets Subsidiaries shall, except as provided in Section 6.1(k) of the Company Disclosure Schedule, as approved by Parent, or as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (i) take any action with respect to, adopt, enter into, terminate or amend any employment (whether at will or otherwise), severance, change in control, retirement, retention, welfare, incentive or similar agreement, arrangement or benefit plan for the benefit or welfare of any current or former director, officer, employee or consultant or any collective bargaining agreement, (ii) increase in any material manner respect the compensation or make fringe benefits of, or pay any material change bonus to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (iv) pay any benefit not provided for as of the date of this Agreement under any Company Benefit Plan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in accounting methodsany benefit plans or agreements or awards made thereunder, principles or practices;
(o) Except except for option awards to purchase Company Common Stock that the Company expects to grant to certain new hires in the ordinary course of business consistent with past practices, incur as specifically set forth in Section 6.1(k) of the Company Disclosure Schedule which Schedule includes the maximum number of options issuable to such new hires or enter into (vi) take any agreement, contract action to fund or commitment requiring such Party to pay in excess of $1,000,000 in any 12other way secure the payment of compensation or benefits under any Company Benefit Plan;
(l) except as otherwise contemplated by this Section 6.1, neither it nor any of its Subsidiaries shall make any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, unless the Company provides Parent with a copy of the intended communication, Parent has a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication;
(m) neither it nor any of its Subsidiaries shall initiate, settle or compromise any litigation, claim, grievance, charge or proceeding without the prior written approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed) (other than as set forth in Section 6.1(m) of the Company Disclosure Schedule or in connection with the enforcement of the Company’s rights under this Agreement);
(n) neither it nor any of its Subsidiaries shall make any changes in credit, billing, collection or discount terms applicable to customers, or in payment terms applicable to suppliers;
(o) neither it nor any of its Subsidiaries shall make or rescind any Tax election, amend any Tax Return, settle or otherwise finally resolve any tax controversy, or permit any insurance policy naming it as a beneficiary or loss-month periodpayable payee to be cancelled or terminated except in the ordinary and usual course of business;
(p) Make neither it nor any of its Subsidiaries shall knowingly take any action or rescind omit to take any Tax elections that, individually or in the aggregate, would be action that is reasonably likely to adversely affect result in any of the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside conditions to the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return Merger set forth in a manner inconsistent with past practice;Article VIII not being satisfied; and
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise neither it nor any of its discretionary rights under Subsidiaries will authorize any Plan to provide for the automatic acceleration of any outstanding optionsof, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with commit, resolve or distribute or advance any assets or property to any of its officersagree, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit otherwise, to take take, any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementactions.
Appears in 1 contract
Samples: Merger Agreement (Computer Associates International Inc)
Conduct Prior to Closing. 7.1 Conduct of Business by HLFrom the Effective Date until Closing, the Company, Parent, and Merger Sub. During the period from the date of except as otherwise provided in this Agreement and continuing until the earlier of the termination of this Agreement pursuant or as consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement), carry on its business Seller Parties shall conduct the Business in the usualordinary course, regular consistent with past practice, and ordinary course shall use commercially reasonable efforts to maintain and preserve intact the Business, the Centers, Seller’s assets and the relationships with the Service Providers, patients, employers, lenders, suppliers, regulators and others having commercial relationships with the Business. Without limiting the foregoing, from the Effective Date until Closing, Seller shall, in a manner consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingto:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change Preserve and maintain all Permits necessary to operate the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments Business in exchange for any options granted under any of such planscompliance with applicable Law;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeePay the debts, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof taxes and as previously or concurrently disclosed or made available to the other Party, or in the case Liabilities of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceBusiness when due;
(c) AbandonXxxx for goods sold and services rendered, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practicesand collect accounts receivable on account thereof;
(d) DeclareManage its working capital, set aside including not delaying payment of accounts payable; accelerating the collection of accounts receivable; accelerating the sale or pay any dividends on disposal of inventory; or make any other distributions offering patients inconsistent transaction terms (whether in cash, stock, equity securities including discounts or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiarydelayed payment arrangements), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) PurchaseMaintain the Centers and tangible assets of the Business in the same condition as they were on the Effective Date, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect subject to Converting Shareholdersreasonable wear and tear;
(f) IssueTimely perform all Seller Parties’ obligations under the Contracts in effect relating to the Business, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any and maintain such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderContracts in full force and effect without modification;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunderMaintain the books and records (including the Medical Records) of the Business;
(h) Acquire or agree Comply with all Laws and the terms of any Contract applicable to acquire by merging or consolidating withthe Centers, the Business and the ownership and use of Seller’s assets;
(i) Not take any action, commit to take any action, or by purchasing permit any equity interest in or a material portion action to be taken that could reasonably be anticipated to (i) cause any of the assets ofchanges, events or conditions to occur, which Seller Parties would be required to disclose in Schedule 2.24 as of Closing or (ii) prevent Seller Parties from performing or cause Seller Parties not to perform one or more covenants required hereunder to be performed by such Seller Parties; and
(j) Promptly notify Buyer of any fact, circumstance, event or action the existence, occurrence or taking of which has had, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree could reasonably be expected to acquire outside the ordinary course of business any assets which are materialhave, individually or in the aggregate, to a material adverse effect on the business of such Party or enter into any joint venturesCenters, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such PartySeller’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practicesPurchased Assets) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (American CareSource Holdings, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business From the Effective Date until the Closing Date, except as otherwise provided by HL, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant or consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing by Buyer (which consent shall not be unreasonably withheld, conditioned continued or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement), carry on its business Seller Parties shall conduct the Business in the usualordinary course, regular and ordinary course consistent with past practicespractice, in substantially and shall use their reasonable best efforts to maintain and preserve intact the same manner as heretofore conducted Business, the Centers and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) Purchased Assets and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customersthe Service Providers, patients, employers, lenders, clients, suppliers, distributors, licensors, licensees, regulators and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance having commercial relationships with the requirements of Business. Without limiting the Securities Actforegoing, from the Exchange ActEffective Date until the Closing Date, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingSeller Parties shall:
(a) Waive Preserve and maintain each of the permits, licenses, approvals, certificates, consents and other authorizations by any share repurchase rightsgovernmental authority issued to or held by Seller Parties and pertaining to the Purchased Assets, accelerate, amend the Centers or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansBusiness;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeePay the debts, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof taxes and as previously or concurrently disclosed or made available to the other Party, or in the case obligations of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceBusiness when due;
(c) AbandonXxxx for goods sold and services rendered, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than and collect accounts receivable on account thereof in the ordinary course of business a manner consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary Maintain the Centers and tangible assets of the Company Business in the same condition as they were on the Effective Date, subject to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockreasonable wear and tear;
(e) PurchaseMaintain the Contracts in full force and effect without modification, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersand timely perform all obligations under the Contracts;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any Maintain the books and records of the foregoing Business in a manner consistent with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderpast practices;
(g) Amend its Charter Documents in any material respectComply with all laws applicable to the Centers, except as contemplated by Section 8.2 hereunderthe Business and the ownership or use of the Purchased Assets, including the Health Care Laws;
(h) Acquire or agree Not take any action, commit to acquire by merging or consolidating withtake any action, or by purchasing permit any equity interest in or a material portion action to be taken that could reasonably be anticipated to (i) cause any of the assets ofchanges, events or conditions to occur, which Seller Parties would be required to disclose in Schedule 2.15 as of the Closing Date or (ii) prevent any Seller Party from performing or cause any Seller Party not to perform one or more covenants required hereunder to be performed by such Seller Party; and
(i) Promptly notify Buyer of any fact, circumstance, event or action the existence, occurrence or taking of which has had, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree could reasonably be expected to acquire outside the ordinary course of business any assets which are materialhave, individually or in the aggregate, to a material adverse effect on the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights Purchased Assets or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (American CareSource Holdings, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business 5.1.1. Except as specifically contemplated by HLthis Agreement, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant as set forth on Schedule 5.1.2 or as consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed), from the date hereof through the Closing, the Company and the Company Subsidiaries shall (a) or operate their business in the ordinary course and substantially in accordance with past practice and (b) use commercially reasonable efforts to preserve intact their existing assets, business organization and operations, Permits, franchises, goodwill and relationships with suppliers, licensors, licensees, customers and others with whom they have a business relationship, in each case material to the operation of the business of the Company and the Company Subsidiaries.
5.1.2. Without limiting the generality of the foregoing, except as set forth in Schedule 7.1 hereto or as specifically contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in on Schedule 7.1 hereto, without the prior written consent of HL 5.1.2 or as consented to by Buyer (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed), during from the Interim Perioddate hereof through the Closing, HL, neither the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do Company nor any of the followingCompany Subsidiary shall:
(a) Waive any share repurchase rights, accelerate, amend increase the compensation or (except as specifically benefits payable or provided for herein) change the period of exercisability of options or restricted stockto, or reprice options granted under enter into or amend any employeeemployment, consultantretention, change in control or severance agreement with, any director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection or any Company Subsidiary, or, with respect to any non-officer personnel of the promotionCompany or any Company Subsidiary, hiring increase the salary, wages, bonus, fees, commissions, or firing other compensation or benefits of any employee such Person, except, in each case, such changes in the ordinary course of business consistent with past practicepractice that are reflected in the 2016 financial projections provided to Buyer prior to the date hereof;
(cb) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declaredeclare, set aside or pay any dividends on non-cash dividend on, or make any other distributions actual or deemed non-cash distribution (whether in stock or property other than cash, stock, equity securities or property) in respect of, any of any its capital stock;
(i) except for the repurchase of capital stock (issued to employees who have exercised vested options pursuant to the terms of their respective option agreements, redeem, purchase or otherwise acquire any shares of its capital stock or any other than securities thereof or obligations convertible into or exchangeable for any shares of its capital stock, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or any such dividend securities or distribution by a Subsidiary of the Company to the Company obligations, (ii) effect any reorganization or another such Subsidiary)recapitalization, or (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities (including equity securities) in respect of, in lieu of or in substitution for any for, shares of its capital stock, or (iv) create any new Subsidiary of the Company;
(ei) Purchaseexcept as required pursuant to the exercise of Company Options, redeem issue, deliver, award, pledge, grant or sell, or dispose or otherwise acquire, directly or indirectly, encumber any shares of any class of its capital stock or stock, any other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests equivalent or any securities convertible into or exercisable or exchangeable for any such shares of capital stock or other equity securities or ownership interestssecurities, or subscriptions, any rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, voting securities, equity securities or other ownership interests equivalents or convertible or exchangeable securities, (ii) amend or otherwise modify the terms of any such rights, warrants or options or (iii) except as for the transactions contemplated by Section 8.2 hereunderhereby, enter into any arrangement, understanding or contract with respect to the sale of shares of its capital stock;
(ge) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire acquire or agree to acquire (whether by merging merging, amalgamating or consolidating with, or by purchasing any an equity interest in or a material portion of the assets of, or by any other manner, manner or means) any business or any corporation, partnership, association, Person or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties other Person (other than the purchase of assets from suppliers or assets, except (A) sales vendors in the ordinary course of business consistent with past practice);
(f) sell, and (B) the salelease, lease exchange, mortgage, pledge, license, encumber, transfer or disposition otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, license, encumber, transfer or otherwise dispose of, any of property its assets, except for sales, leases or assets that are not materiallicenses of products or services, individually or which, in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, are immaterial in the case of the Company and its Subsidiaries, extensions of credit amount or otherwise occur in the ordinary course of business consistent with employees and among past practice;
(g) propose or adopt any amendments to its charter, bylaws or other organizational documents, except as specifically contemplated by this Agreement;
(h) change any of the Company and its Subsidiaries)accounting methods, incur any indebtedness for borrowed money principles or guarantee any such indebtedness practices from those used in the preparation of another Person or Persons the Audited Financials (other than Affiliatesas required by changes in GAAP), issue or sell any debt securities or optionsit being understood that the Company has already changed its methods, warrantsprinciples and practices for certain items described in, calls or other rights to acquire any debt securitiesand in the manner described in, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any Section 3.8.1 of the foregoingDisclosure Schedule;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (i) incur, assume or guarantee any Indebtedness, (ii) pay make any special bonus loans, advances or special remuneration capital contributions to, or other investments in (whether by purchase of shares or securities, contributions of capital, property transfer or purchase of any property or assets), any other Person, (iii) issue or sell any debt securities or (iv) waive or release any material right or claim or pay, discharge or satisfy any material claims, liabilities or obligations;
(j) amend or terminate any Material Contract, other than any termination or expiration of a Material Contract by its own terms, or enter into any contract or agreement that, if such contract or agreement had been entered into prior to the date hereof, would be a Material Contract;
(k) enter into any director non-compete, non-solicitation, exclusivity, most-favored nation or employee, except similar agreement that would materially restrict the business of the Company or any of the Company Subsidiaries following the consummation of the Merger;
(l) other than in the ordinary course of business consistent with past practicespractice, commence, settle, or compromise any Legal Proceedings if such settlement or compromise imposes material obligations or restrictions on the Company or any of the Company Subsidiaries, taken as a whole, that will remain in effect following the Effective Time;
(iiim) materially increase change any of the salaries Company’s or wage rates the Company Subsidiaries’ methods of accounting or fringe benefits (including rights to severance methods of reporting income or indemnification) of its directors, officers, employees deductions for Tax or consultantsaccounting practice or policy, except in each case as required by applicable Law or GAAP;
(n) delay, postpone or cancel the payment of any material amount of accounts payable or any other material liability or obligation or agree or negotiate with any Person to extend the payment date of any material amount of accounts payable or accelerate collection of any material amount of accounts or notes receivable, except in each case in the ordinary course of business consistent with past practicespractice;
(lo) (i) Paypay, discharge, settle settle, waive or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement settlement, waiver or satisfaction of any claimssatisfaction, liabilities or obligations in the ordinary course of business consistent with past practices practice, of liabilities reflected or in accordance with their terms, or recognized or disclosed reserved against in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, Financials or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicablepractice;
(mp) Except engage in any transaction with any Related Party other than in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunderpractice;
(nq) Except as required by law, U.S. GAAP, or IFRS, revalue close any clinics other than closures of its assets in any material manner or make any material change in accounting methods, principles or practicesthose clinics set forth on Section 5.1.2(q) of the Disclosure Schedule;
(or) Except enter into any interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other similar financial instruments;
(s) fail to use commercially reasonable efforts to cause its current insurance policies or any of the coverage thereunder not to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(t) approve or adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company;
(u) induce or otherwise entice, through discounts, rebates or other incentives, any customers of the Company to prepay for the provision of products or services in advance of the delivery of such products or services of the Company, except in each case in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month periodpractice;
(pv) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as other than amendments required by applicable Legal RequirementsLaw or required to maintain the Tax-qualified status of any Company Employee Plan under Section 401(a) of the Code, enter into, adopt, establish, terminate or amend any Company Employee Plan (or any arrangement that would be a Company Employee Plan if it was in effect on the date hereof);
(i) change any method of Tax or accounting for election, method, practice or policy, (ii) fail to pay any Tax purposes as such Tax becomes due and payable, (iii) file any amended Tax Return, or prepare or file any Tax Return in a manner inconsistent with past practicepractice or applicable Law, (iv) enter into any closing agreement, settlement or compromise of any claim or assessment, in each case in respect of Taxes, or (v) consent to any extension or waiver of any limitation period with respect to any claim or assessment for Taxes;
(qx) Form or establish fail to make cash payments in respect of the liabilities associated with any subsidiary except of the Excluded Accounts in the ordinary course of business consistent with prior past practice (including making payments to employees or as contemplated by this Agreementotherwise processing payroll);
(ry) Permit commit to undertake any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of exceeding $500,000;
(t) Enter into 100,000 for any individual project after the Closing, or defer or fail to make any material transaction capital expenditure substantially in accordance with or distribute or advance any assets or property to any the schedule of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (icapital expenditures set forth on Section 3.8.5(g) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such SubsidiaryDisclosure Schedule; or
(uz) Agree in writing enter into any contract, agreement, commitment or otherwise agree or commit arrangement to take do any of the actions described in Section 7.1(a) through (t) aboveforegoing.
5.1.3. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents From immediately prior to the Company’s adoption close of business on the day prior to the Closing Date until the Closing, neither the Company nor any Company Subsidiary shall declare, set aside or pay any dividend on, or make any other actual or deemed distribution or payment (whether in cash, stock or property) in respect of, any of its Amended capital stock, except for cash dividends that have been taken into account in the amount of cash and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing cash equivalents used in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementcalculating Estimated Working Capital.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct MMA hereby covenants and agrees with Buyers that, prior to the Closing, unless the prior written consent of Business by HL, the Company, Parent, MMA Buyer shall have been obtained and Merger Sub. During the period from the date of except as otherwise expressly contemplated in this Agreement or requested by MMA Buyer (and continuing until the earlier of the termination of this Agreement pursuant agreed to its terms and the Closing (the “Interim Period”by MMA), MMA, RTS, each of HL, the Company, the Company’s Subsidiaries, Parent Subsidiary and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) each Fund shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on operate its business only in the usual, regular and ordinary course consistent and in accordance with past practicespractice and conduct its business in a manner comporting with the standards of service quality and compliance heretofore met by it, in substantially the same manner as heretofore conducted and shall use its best efforts to operate its business in compliance in all material respects with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) laws and shall use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organizationorganization and assets and maintain its rights, franchises and business and customer relations necessary to run the business as currently run. To the extent this Section 5.1 (ii) keep available the services or any of its present key officers and employees, (iiisubsections hereinafter set forth) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished is applicable to the SEC (“Additional HL SEC Reports”)Funds, which Additional SEC Reports MMA's obligation shall be prepared in accordance limited to not taking any action (except as directed by the governing board of a Fund) or recommending that the Funds take any action inconsistent with the requirements following covenants and agreeing to promptly advise MMA Buyer of any action taken by a Fund's officers or governing board that would be inconsistent with the Securities Actfollowing covenants. From the date hereof until the Closing, MMA shall ensure, subject to the Exchange Actforegoing, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, that without the prior written consent of HL (in the case of a request MMA Buyer and except as otherwise expressly contemplated by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingthis Agreement:
(a) Waive MMA, RTS, each Subsidiary and each Fund shall not incur any share repurchase rightsindebtedness for borrowed money, accelerateexcept in the ordinary course of business consistent with prior practice, amend issue or (except as specifically provided for herein) change the period of exercisability of options sell any debt securities or restricted stock, or reprice options granted under prepay any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansdebt;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeeMMA, RTS, each Subsidiary and each Fund shall not, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case ordinary course of business consistent with past practice, sell, transfer, lease, mortgage, pledge or hypothecate any of its properties or assets, tangible or intangible; provided, that in any event RTS shall not sell, transfer, lease or encumber the Company Owned Real Estate or any interest therein or portion thereof or enter into any contract, agreement or understanding to do the same;
(c) MMA, RTS, each Subsidiary and each Fund shall not, except where required in the exercise of its Subsidiaries except fiduciary obligations, take any action (other than in connection with the promotiontransactions contemplated hereby), hiring other than actions in the ordinary course of business;
(d) MMA, RTS, each Subsidiary and each Fund shall not forgive or firing of cancel any employee debts or claims, or waive any rights, or discharge any lien or liability except for fair value or in the ordinary course of business consistent with past practice;
(ce) AbandonMMA, allow to lapseRTS and each Subsidiary shall not recommend that any Fund change its investment objective, transfer, sell, assignpolicies, or license restrictions;
(f) MMA, RTS, each Subsidiary and each Fund shall not, except as provided in Section 5.1(l) or as may be required by applicable law and after notice to -------------- MMA Buyer, adopt, or amend in any Person material respect, any employment, collective bargaining, bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of employees or officers of MMA, RTS, any Subsidiary or the Directors/Trustees of each Fund;
(g) except (i) such changes or terminations as may be proposed by MMA Buyer (and agreed to by MMA), (ii) as may be required by applicable law and after notice to Buyers, (iii) as expressly provided by this Agreement or (iv) any renewal of an expiring agreement for which MMA, RTS, each Subsidiary and each Fund shall obtain the prior consent of MMA Buyer which consent shall not be unreasonably withheld, MMA, RTS, each Subsidiary and each Fund shall not amend or terminate the Partnership Agreement, any Real Estate Lease, any agreement or contract involved in the operation of the Funds, any material agreement, Articles of Incorporation, Declaration of Trust or bylaws (as the case may be) or any other organizational documents, or file any tax election, claim for refund on an amended return (in the case of RTS or RIB only), or request for ruling or determination with any taxing authority;
(h) MMA, RTS, each Subsidiary and each Fund shall not change in any respect its accounting practices, policies or principles, except as may be required by applicable law or GAAP and after notice to MMA Buyer;
(i) MMA, RTS, each Subsidiary and each Fund shall not incur any liability or obligation (whether absolute, accrued, contingent or otherwise extendand whether direct or as guarantor or otherwise with respect to the obligations of others), amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than except in the ordinary course of business consistent with past practicespractice or as otherwise permitted hereunder; provided, however, that in no event shall any of RTS or the Funds incur any such debt obligations in an amount in excess of $25,000 without providing prior notice to MMA Buyer (other than deposit accounts or Federal Home Loan Bank advances with a term of one year or less);
(dj) DeclareMMA, set aside or pay any dividends on or RTS, each Subsidiary and each Fund shall not make any other distributions material changes in policies or practices relating to the sale of its shares (whether including accounting practices relating thereto) or in cashpolicies or practices of employment unless required by applicable law or GAAP and after notice to MMA Buyer;
(k) MMA, stockRTS, equity securities each Subsidiary and each Fund shall not enter into any type of business not conducted as of the date of this Agreement or propertycreate or organize any subsidiary or enter into or participate in any joint venture or partnership;
(l) MMA, RTS, each Subsidiary and each Fund shall not make any change in the compensation payable or to become payable to any of its representatives, employees, agents or independent contractors except with respect to its employees (exclusive of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company Sellers) for (i) normal annual increases in accordance with past practices or (ii) annual bonus payments or arrangements in the ordinary course of business not to exceed $200,000 per year in the Company or another such Subsidiary)aggregate;
(m) RTS, or each Subsidiary and each Fund shall not adjust, split, combine or reclassify any capital stock except as set forth in Section 7.12; set any ------------ record or issue or authorize payment dates for the issuance payment of any other securities dividends or distributions, or pay any dividend or make any distribution, on its capital stock except in respect ofthe ordinary and usual course of business consistent with past practice; directly or indirectly redeem, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity securities or ownership interests, (except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any the Funds as required by the provisions of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests Investment Company Act) or any securities or obligations convertible into or exchangeable for any shares of its capital stock or grant any stock appreciation rights or grant any individual, corporation or other equity securities or ownership interests, or subscriptions, rights, warrants or options entity any right to acquire any shares of its capital stock stock; MMA shall not make any transfer or other equity securities or ownership interests or any securities convertible into or exchangeable for shares distribution of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments its property to the Sellers in respect of any character obligating it Interests except to issue any such sharesthe extent and in the manner provided in Section 1.3 and except that MMA shall not be ----------- prohibited from redeeming, equity securities purchasing or otherwise acquiring the Limited Partnership Interests of the Sellers other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderthan the Principal Sellers;
(gn) Amend its Charter Documents in any material respectMMA, RTS, each Subsidiary and each Fund shall not, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales transactions in the ordinary course of business consistent with past practice, and (B) the salemake any material acquisition or investment either by purchase of stock or securities, lease merger or disposition consolidation, contributions to capital, property transfers, or purchases of any property or assets that are not materialof any other individual, individually corporation or in the aggregateother entity other than a wholly-owned subsidiary thereof; provided, however, that, notwithstanding anything to the business contrary contained herein, none of such Party (measured with all of its SubsidiariesMMA, taken RTS or the Subsidiaries shall make any acquisition that would require it or MMA Buyer to register as a whole)bank holding company under the Bank Holding Company Act of 1956, as amended;
(jo) Except incurrences RTS shall not enter into, renew or terminate any contract or agreement, other than loans, deposit accounts and Federal Home Loan Bank advances with a term of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit one year or less made in the ordinary course with employees of business, that calls for aggregate annual payments in excess of $50,000 individually or $200,000 in the aggregate and among the Company and which is not either (i) terminable at will on 60 days or less notice without payment of a penalty or (ii) has a term of one year or less; or make any material change in or terminate any of its Subsidiaries)leases or contracts, incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue renewals of contracts or sell any debt securities leases for a term of one year or options, warrants, calls or other rights less without materially adverse changes to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingterms thereof;
(kp) Except as contemplated by Section 8.15 hereunderRTS shall not make any capital expenditures in excess of $25,000 in the aggregate without the prior written consent of MMA Buyer which will not be unreasonably withheld, other than expenditures necessary to maintain existing assets in good repair;
(q) RTS shall not make application for the opening, relocation or closing of any, or as otherwise required by applicable Legal Requirements open, relocate or pursuant to an existing Planclose any, policy branch or Company Contract, loan production office;
(ir) adopt RTS shall not make or materially amend acquire any Plan (including loan or issue a commitment for any Plan loan except for loans and commitments that provides for severance), or enter into any employment contract or collective bargaining agreement (other than are made in the ordinary course of business consistent with past practice), (ii) pay practice or issue or agree to issue any special bonus letters of credit or special remuneration to otherwise guarantee the obligations of any director or employee, other persons except in the ordinary course of business consistent with past practicesin order to facilitate the sale of real property acquired by foreclosure or deed in lieu of foreclosure;
(s) RTS shall not foreclose upon or otherwise acquire (whether by deed in lieu of foreclosure or otherwise) any real property without the prior written consent of MMA Buyer which will not be unreasonably withheld (other than 1- to-4 family residential properties in the ordinary course of business);
(t) RTS shall not change its investment securities portfolio policy, or the manner in which the portfolio is classified or reported except as required by applicable law or GAAP;
(iiiu) materially increase RTS shall not engage in the salaries business of making or wage rates make any Veterans' Administration guaranteed or fringe benefits Federal Housing Administration insured mortgage loans;
(including rights v) RTS shall not enter into any contracts or agreements or amendments or supplements thereto pertaining to severance any further development of specialized software without the prior written consent of MMA Buyer which will not be unreasonably withheld;
(w) RTS shall maintain its loan loss reserves in an amount that is not less than the amount reflected on the 1998 RTS Financial Statements to the extent permitted by GAAP;
(x) MMA, RTS, each Subsidiary and each Fund shall not enter into any agreement, commitment or indemnification) other transactions or make any amendment or modification to any such agreement or agree or commit to do any of its directors, officers, employees or consultants, except the foregoing unless it is entered into in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes law or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person GAAP and after notice to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementMMA Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)
Conduct Prior to Closing. 7.1 Conduct of Business by HLFrom the Effective Date until the Closing Date, the Company, Parent, and Merger Sub. During the period from the date of except as otherwise provided in this Agreement and continuing until the earlier of the termination of this Agreement pursuant or consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing by Buyer (which consent shall not be unreasonably withheld, conditioned withheld or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement), carry on its business Seller Parties shall conduct the Business in the usualordinary course, regular consistent with past practice, and ordinary course shall use their reasonable best efforts to maintain and preserve intact the Business, the Centers and Purchased Assets and the relationships with the Service Providers, patients, employers, lenders, suppliers, regulators and others having commercial relationships with the Business. Without limiting the foregoing, from the Effective Date until the Closing Date, Seller Parties shall, in a manner consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change Preserve and maintain each of the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansPermits;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeePay the debts, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof taxes and as previously or concurrently disclosed or made available to the other Party, or in the case obligations of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceBusiness when due;
(c) AbandonXxxx for goods sold and services rendered, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practicesand collect accounts receivable on account thereof;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary Maintain the Centers and tangible assets of the Company Business in the same condition as they were on the Effective Date, subject to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockreasonable wear and tear;
(e) PurchaseMaintain the Contracts in full force and effect without modification, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersand timely perform all obligations thereunder;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any Maintain the books and records of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderBusiness;
(g) Amend its Charter Documents in any material respectComply with all laws applicable to the Centers, except as contemplated by Section 8.2 hereunderthe Business and the ownership or use of the Purchased Assets;
(h) Acquire or agree Not take any action, commit to acquire by merging or consolidating withtake any action, or by purchasing permit any equity interest in or a material portion action to be taken that could reasonably be anticipated to (i) cause any of the assets ofchanges, events or conditions requiring disclosure in Schedule 2.16 as of the Closing Date to occur or (ii) prevent any Seller Party from performing or cause any Seller Party not to perform one or more covenants required hereunder to be performed by such Seller Party; and
(i) Promptly notify Buyer of any fact, circumstance, event or action the existence, occurrence or taking of which has had, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree could reasonably be expected to acquire outside the ordinary course of business any assets which are materialhave, individually or in the aggregate, to a material adverse effect on the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights Purchased Assets or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Caresource Holdings, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, Agreement or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d)foregoing, (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Fusion Fuel Green LTD)
Conduct Prior to Closing. 7.1 Conduct Without in any way limiting any other obligations of Business by HLthe Vendors hereunder, the Company, Parent, and Merger Sub. During during the period from the date of this Agreement and continuing hereof until the earlier of the termination of the parties' obligations under this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as other than those set forth in Schedule 7.1 hereto or as contemplated by this AgreementSections 12.2, carry on its business in the usual12.3, regular 12.4 and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto12.5) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services Time of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingClosing:
(a1) Waive any share repurchase rightsthe Vendors shall cause Holdco, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its the Subsidiaries except in connection with to:
(1) conduct the promotionBusiness and the operations and affairs of Holdco, hiring or firing of any employee the Company and the Subsidiaries only in the ordinary and normal course of business business, consistent with past practice;
(c3) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify not enter into any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party supply arrangements or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability Contract which is material to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, Company and the Subsidiaries taken as a result of such transaction, financial statements whole without the prior written consent of the acquired, merged, or consolidated entity be included in the Proxy Statement/ProspectusPurchaser;
(i4) Sell, lease, license, encumber not acquire or otherwise dispose of any properties material property other than inventories and equipment purchased or assets, except (A) sales disposed of in the ordinary and normal course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case conduct of the Company and its SubsidiariesBusiness, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q5) Form not terminate, amend, supplement or establish otherwise alter the terms of any subsidiary material Lease or make any material improvement or other material changes to any Leased Property or Real Property except as may be approved by the Purchaser in writing;
(6) use its best efforts to maintain in full force and effect (and, if applicable, to renew on substantially the same terms) all material policies of insurance now in effect;
(7) not purchase or acquire any real property or sell or dispose of any of the Real Property;
(8) pay and discharge the liabilities and obligations of the Company and the Subsidiaries in the ordinary and normal course in accordance and consistent with the past practice of the Company and the Subsidiaries, except those contested in good faith; and
(9) not grant any general increase in the compensation of the employees of Holdco, the Company or any of the Subsidiaries (including any increase pursuant to any Employee Plan) or any material increase in the compensation or bonus payable to any officer, employee, consultant or agent of Holdco, the Company or any of the Subsidiaries, other than increases in the ordinary and normal course of business the Business consistent with past practice; and
(2) the Vendors shall use, and shall cause the Company and the Subsidiaries to use, their respective best efforts to:
(1) obtain, at or prior practice to the Time of Closing, from all appropriate federal, provincial, state, municipal or as contemplated by this Agreementother governmental or regulatory bodies, the licences, permits, consents, approvals, certificates, registrations and authorizations described in Schedule 4.12(a);
(r3) Permit any Person to exercise any preserve intact the Business and the property, assets, operations and affairs of its discretionary rights under any Plan to provide for the automatic acceleration Company and the Subsidiaries and carry on the Business and the affairs of any outstanding options, the termination of any outstanding repurchase rights or Company and the termination of any cancellation rights issued pursuant to such PlansSubsidiaries as currently conducted;
(s4) Make capital expenditures in excess take all necessary action, steps and proceedings to approve or authorize, validly and effectively, the completion of $500,000;the transactions contemplated hereby; and
(t5) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) satisfy the payment of salary conditions set out in Sections 8 and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement9.
Appears in 1 contract
Samples: Share Purchase Agreement (First Union Real Estate Equity & Mortgage Investments)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier (1) Without in any way limiting any other obligations of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayedVendor hereunder, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingVendor shall:
(a) Waive any share repurchase rights, accelerate, amend continue to maintain in full force and effect all the insurance policies or (except as specifically provided for herein) change renewals thereof relating to the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments Purchased Assets currently in exchange for any options granted under any of such planseffect;
(b) Grant any material severance or termination pay use its best efforts to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on obtain the date hereof and as previously or concurrently disclosed or made available to the other Party, or Approvals described in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceSchedule 5.1(10);
(c) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in preserve intact the ordinary course of business consistent with past practicesPurchased Assets;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary and discharge the liabilities of the Company Vendor relating to the Company or another such Subsidiary)Purchased Assets in the Ordinary Course in accordance and consistent with the previous practice of the Vendor, or split, combine or reclassify any capital stock or issue or authorize except those contested in good faith by the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockVendor;
(e) Purchasetake all necessary corporate action, redeem steps and proceedings to approve or otherwise acquireauthorize, directly or indirectlyvalidly and effectively, any shares the execution and delivery of capital stock or this Agreement and the other equity securities or ownership interests, except with respect agreements and documents contemplated hereby and to Converting Shareholderscomplete the transfer of the Purchased Assets to the Purchaser and to cause all necessary meetings of directors and shareholders of the Vendor to be held for that purpose;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree periodically report to any the Purchaser as it requests concerning the state of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;Purchased Assets; and
(g) Amend use its Charter Documents best efforts to satisfy the conditions contained in Section 4.1.
(2) Without in any material respectway limiting any other obligations of the Purchaser hereunder, except as contemplated by Section 8.2 hereunder;during the Interim Period, the Purchaser shall:
(ha) Acquire or agree use its best efforts to acquire by merging or consolidating with, or by purchasing any equity interest obtain the Approvals described in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a wholeSchedule 5.2(5);
(jb) Except incurrences take all necessary corporate action, steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of indebtedness under this Agreement and the Company’s existing credit facilities (and, in other agreements and documents contemplated hereby and to complete the case transfer of the Company Purchased Assets to the Purchaser and its Subsidiaries, extensions to cause all necessary meetings of credit in the ordinary course with employees directors and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any shareholders of the foregoing;Vendor to be held for that purpose; and
(kc) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant use its best efforts to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in satisfy the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described conditions contained in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement4.2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lexaria Bioscience Corp.)
Conduct Prior to Closing. 7.1 Conduct of Business 5.1.1. Except as specifically contemplated by HLthis Agreement, the Company, Parent, and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant as set forth on Schedule 5.1.2 or as consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed), from the date hereof through the Closing, the Company and the Company Subsidiaries shall (a) or operate their business in the ordinary course and substantially in accordance with past practice and (b) use commercially reasonable efforts to preserve intact their existing assets, business organization and operations, Permits, franchises, goodwill and relationships with suppliers, licensors, licensees, customers and others with whom they have a business relationship, in each case material to the operation of the business of the Company and the Company Subsidiaries.
5.1.2. Without limiting the generality of the foregoing, except as set forth in Schedule 7.1 hereto or as specifically contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in on Schedule 7.1 hereto, without the prior written consent of HL 5.1.2 or as consented to by Buyer (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed), during from the Interim Perioddate hereof through the Closing, HL, neither the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do Company nor any of the followingCompany Subsidiary shall:
(a) Waive any share repurchase rights, accelerate, amend increase the compensation or (except as specifically benefits payable or provided for herein) change the period of exercisability of options or restricted stockto, or reprice options granted under enter into or amend any employeeemployment, consultantretention, change in control or severance agreement with, any director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection or any Company Subsidiary, or, with respect to any non-officer personnel of the promotionCompany or any Company Subsidiary, hiring increase the salary, wages, bonus, fees, commissions, or firing other compensation or benefits of any employee such Person, except, in each case, such changes in the ordinary course of business consistent with past practicepractice that are reflected in the 2016 financial projections provided to Buyer prior to the date hereof;
(cb) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declaredeclare, set aside or pay any dividends on non-cash dividend on, or make any other distributions actual or deemed non-cash distribution (whether in stock or property other than cash, stock, equity securities or property) in respect of, any of any its capital stock;
(i) except for the repurchase of capital stock (issued to employees who have exercised vested options pursuant to the terms of their respective option agreements, redeem, purchase or otherwise acquire any shares of its capital stock or any other than securities thereof or obligations convertible into or exchangeable for any shares of its capital stock, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or any such dividend securities or distribution by a Subsidiary of the Company to the Company obligations, (ii) effect any reorganization or another such Subsidiary)recapitalization, or (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities (including equity securities) in respect of, in lieu of or in substitution for any for, shares of its capital stock, or (iv) create any new Subsidiary of the Company;
(ei) Purchaseexcept as required pursuant to the exercise of Company Options, redeem issue, deliver, award, pledge, grant or sell, or dispose or otherwise acquire, directly or indirectly, encumber any shares of any class of its capital stock or stock, any other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests equivalent or any securities convertible into or exercisable or exchangeable for any such shares of capital stock or other equity securities or ownership interestssecurities, or subscriptions, any rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, voting securities, equity securities or other ownership interests equivalents or convertible or exchangeable securities, (ii) amend or otherwise modify the terms of any such rights, warrants or options or (iii) except as for the transactions contemplated by Section 8.2 hereunderhereby, enter into any arrangement, understanding or contract with respect to the sale of shares of its capital stock;
(ge) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire acquire or agree to acquire (whether by merging merging, amalgamating or consolidating with, or by purchasing any an equity interest in or a material portion of the assets of, or by any other manner, manner or means) any business or any corporation, partnership, association, Person or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties other Person (other than the purchase of assets from suppliers or assets, except (A) sales vendors in the ordinary course of business consistent with past practice);
(f) sell, and (B) the salelease, lease exchange, mortgage, pledge, license, encumber, transfer or disposition otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, license, encumber, transfer or otherwise dispose of, any of property its assets, except for sales, leases or assets that are not materiallicenses of products or services, individually or which, in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, are immaterial in the case of the Company and its Subsidiaries, extensions of credit amount or otherwise occur in the ordinary course of business consistent with employees and among past practice;
(g) propose or adopt any amendments to its charter, bylaws or other organizational documents, except as specifically contemplated by this Agreement;
(h) change any of the Company and its Subsidiaries)accounting methods, incur any indebtedness for borrowed money principles or guarantee any such indebtedness practices from those used in the preparation of another Person or Persons the Audited Financials (other than Affiliatesas required by changes in GAAP), issue or sell any debt securities or optionsit being understood that the Company has already changed its methods, warrantsprinciples and practices for certain items described in, calls or other rights to acquire any debt securitiesand in the manner described in, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any Section 3.8.1 of the foregoingDisclosure Schedule;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (i) incur, assume or guarantee any Indebtedness, (ii) pay make any special bonus loans, advances or special remuneration capital contributions to, or other investments in (whether by purchase of shares or securities, contributions of capital, property transfer or purchase of any property or assets), any other Person, (iii) issue or sell any debt securities or (iv) waive or release any material right or claim or pay, discharge or satisfy any material claims, liabilities or obligations;
(j) amend or terminate any Material Contract, other than any termination or expiration of a Material Contract by its own terms, or enter into any contract or agreement that, if such contract or agreement had been entered into prior to the date hereof, would be a Material Contract;
(k) enter into any director non-compete, non-solicitation, exclusivity, most-favored nation or employee, except similar agreement that would materially restrict the business of the Company or any of the Company Subsidiaries following the consummation of the Merger;
(l) other than in the ordinary course of business consistent with past practicespractice, commence, settle, or compromise any Legal Proceedings if such settlement or compromise imposes material obligations or restrictions on the Company or any of the Company Subsidiaries, taken as a whole, that will remain in effect following the Effective Time;
(iiim) materially increase change any of the salaries Company’s or wage rates the Company Subsidiaries’ methods of accounting or fringe benefits (including rights to severance methods of reporting income or indemnification) of its directors, officers, employees deductions for Tax or consultantsaccounting practice or policy, except in each case as required by applicable Law or GAAP;
(n) delay, postpone or cancel the payment of any material amount of accounts payable or any other material liability or obligation or agree or negotiate with any Person to extend the payment date of any material amount of accounts payable or accelerate collection of any material amount of accounts or notes receivable, except in each case in the ordinary course of business consistent with past practicespractice;
(lo) (i) Paypay, discharge, settle settle, waive or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement settlement, waiver or satisfaction of any claimssatisfaction, liabilities or obligations in the ordinary course of business consistent with past practices practice, of liabilities reflected or in accordance with their terms, or recognized or disclosed reserved against in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, Financials or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicablepractice;
(mp) Except engage in any transaction with any Related Party other than in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunderpractice;
(nq) Except as required by law, U.S. GAAP, or IFRS, revalue close any clinics other than closures of its assets in any material manner or make any material change in accounting methods, principles or practicesthose clinics set forth on Section 5.1.2(q) of the Disclosure Schedule;
(or) Except enter into any interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other similar financial instruments;
(s) fail to use commercially reasonable efforts to cause its current insurance policies or any of the coverage thereunder not to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(t) approve or adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company;
(u) induce or otherwise entice, through discounts, rebates or other incentives, any customers of the Company to prepay for the provision of products or services in advance of the delivery of such products or services of the Company, except in each case in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month periodpractice;
(pv) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as other than amendments required by applicable Legal RequirementsLaw or required to maintain the Tax-qualified status of any Company Employee Plan under Section 401(a) of the Code, enter into, adopt, establish, terminate or amend any Company Employee Plan (or any arrangement that would be a Company Employee Plan if it was in effect on the date hereof);
(i) change any method of Tax or accounting for election, method, practice or policy, (ii) fail to pay any Tax purposes as such Tax becomes due and payable, (iii) file any amended Tax Return, or prepare or file any Tax Return in a manner inconsistent with past practicepractice or applicable Law, (iv) enter into any closing agreement, settlement or compromise of any claim or assessment, in each case in respect of Taxes, or (v) consent to any extension or waiver of any limitation period with respect to any claim or assessment for Taxes;
(qx) Form or establish fail to make cash payments in respect of the liabilities associated with any subsidiary except of the Excluded Accounts in the ordinary course of business consistent with prior past practice (including making payments to employees or as contemplated by this Agreementotherwise processing payroll);
(ry) Permit commit to undertake any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of exceeding $500,000;
(t) Enter into 100,000 for any individual project after the Closing, or defer or fail to make any material transaction capital 41 expenditure substantially in accordance with or distribute or advance any assets or property to any the schedule of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (icapital expenditures set forth on Section 3.8.5(g) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such SubsidiaryDisclosure Schedule; or
(uz) Agree in writing enter into any contract, agreement, commitment or otherwise agree or commit arrangement to take do any of the actions described in Section 7.1(a) through (t) aboveforegoing.
5.1.3. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents From immediately prior to the Company’s adoption close of business on the day prior to the Closing Date until the Closing, neither the Company nor any Company Subsidiary shall declare, set aside or pay any dividend on, or make any other actual or deemed distribution or payment (whether in cash, stock or property) in respect of, any of its Amended capital stock, except for cash dividends that have been taken into account in the amount of cash and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing cash equivalents used in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementcalculating Estimated Working Capital.
Appears in 1 contract
Samples: Merger Agreement
Conduct Prior to Closing. 7.1 Conduct of Business by HLFrom the Effective Date until the Closing Date, the Company, Parent, and Merger Sub. During the period from the date of except as otherwise provided in this Agreement and continuing until the earlier of the termination of this Agreement pursuant or consented to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing by Buyer (which consent shall not be unreasonably withheld, conditioned withheld or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement), carry on its business Seller Parties shall conduct the Business in the usualordinary course, regular consistent with past practice, and ordinary course shall use their reasonable best efforts to maintain and preserve intact the Business, the Centers and Purchased Assets and the relationships with the Service Providers, patients, employers, lenders, suppliers, regulators and others having commercial relationships with the Business. Without limiting the foregoing, from the Effective Date until the Closing Date, Seller Parties shall, in a manner consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change Preserve and maintain each of the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansPermits;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employeePay the debts, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof taxes and as previously or concurrently disclosed or made available to the other Party, or in the case obligations of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practiceBusiness when due;
(c) AbandonXxxx for goods sold and services rendered, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practicesand collect accounts receivable on account thereof;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary Maintain the Centers and tangible assets of the Company Business in the same condition as they were on the Effective Date, subject to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockreasonable wear and tear;
(e) PurchaseMaintain the Contracts in full force and effect without modification, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersand timely perform all obligations thereunder;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any Maintain the books and records of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderBusiness;
(g) Amend its Charter Documents in any material respectComply with all laws applicable to the Centers, except as contemplated by Section 8.2 hereunderthe Business and the ownership or use of the Purchased Assets;
(h) Acquire or agree Not take any action, commit to acquire by merging or consolidating withtake any action, or by purchasing permit any equity interest in or a material portion action to be taken that could reasonably be anticipated to (i) cause any of the assets ofchanges, events or conditions requiring disclosure in Schedule 2.15 as of the Closing Date to occur or (ii) prevent any Seller Party from performing or cause any Seller Party not to perform one or more covenants required hereunder to be performed by such Seller Party; and
(i) Promptly notify Buyer of any fact, circumstance, event or action the existence, occurrence or taking of which has had, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree could reasonably be expected to acquire outside the ordinary course of business any assets which are materialhave, individually or in the aggregate, to a material adverse effect on the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights Purchased Assets or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Caresource Holdings, Inc.)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. (a) During the period from beginning on the date of this Agreement and continuing until through the earlier of the Closing or the termination of this Agreement pursuant to its terms and the Closing (the “Interim Pre-Closing Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall as otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this AgreementAgreement or as Purchasers otherwise agree in writing in advance, carry on its business Sellers shall conduct the Business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent to preserve intact the Business and its relationship with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, suppliers and others with which it has significant business dealingsservice providers. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents Except as expressly required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, applicable Law or as set forth in Schedule 7.1 heretothis Agreement, Sellers shall not and shall not permit their respective Affiliates to, without the prior written consent of HL Purchasers in writing (in the case of a request by the Company) or the Company (in the case of a request by HL), which such consent shall not to be unreasonably withheld, conditioned delayed or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:conditioned):
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) mortgage, lease, pledge or otherwise encumber any officer Acquired Assets or (ii) any employeesell, except pursuant transfer, license, permit to applicable Legal Requirements, written agreements outstanding, lapse or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing otherwise dispose of any employee Acquired Assets except, in each case, in the ordinary course of business and consistent with past practice;
(cii) Abandon, allow terminate or fail to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except exercise renewal options with respect to Converting Shareholders;
(f) Issueany Acquired Contract, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in make any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest change in or a waive any material portion of the assets of, or by right under any other manner, any business or any corporation, partnership, association, or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party Acquired Contract or enter into any joint ventures, strategic partnerships or alliances, or other arrangements Contract related to the Product that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell would be binding on any products or services to other Persons. For purposes of this paragraph, “material” includes Purchaser following the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/ProspectusClosing;
(iiii) Sellmake any change in the manner in which Sellers or their respective Affiliates generally extends rebates, leasediscounts or credit to, license, encumber or otherwise dispose of any properties or assetsdeal with, except (A) sales in the ordinary course of business consistent customers with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, respect to the business of such Party (measured with all of its Subsidiaries, taken as a whole)Product or the Acquired Assets;
(jiv) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced announced prior to the date of this Agreement, as required by a Governmental Entity or applicable Law, change any selling price of the Product; provided that Purchasers will be deemed to have given its consent under this Section 7.1(a)(iv) other unless Purchasers object to such proposed change on reasonable grounds no later than [***] Days after actual receipt by Purchasers from the paymentCompany of all reasonable information relating to such change;
(v) accelerate the delivery or sale of the Product in a manner materially inconsistent with past practice and the ordinary course of business;
(vi) commence, waive, release, assign, initiate, pay, discharge, settlement settle or satisfaction compromise any pending or threatened claim, action, litigation, arbitration or proceeding primarily related to the Product or the Acquired Assets;
(vii) enter into any agreement or arrangement the purpose of which would be to limit or restrict the Commercialization of the Product in any material respect following the Closing;
(viii) (A) revise or modify any promotional material (including any labeling) included in the Regulatory Documentation or (B) add, remove or otherwise alter in any material respect any references to the Product in any website controlled by any of the Sellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B)), except as required by a Governmental Entity or as otherwise required by applicable Law;
(ix) correspond, communicate or consult with the FDA or similar Governmental Entity, in each case with respect to the Product, outside the ordinary course of business without providing Purchasers with prior written notice and the opportunity to consult with Sellers with respect to such correspondence, communication or consultation;
(x) (A) abandon, lapse or allow to lapse any Acquired Intellectual Property or (B) grant any license, sublicense or other right with respect to any Acquired Intellectual Property;
(xi) except as required under any Seller Plan in accordance with its terms as of the date of this Agreement or by applicable Law, (A) increase the base salary (or wages), target incentive compensation opportunity or benefits of any claimsProduct Employee, liabilities or obligations except for (1) increases due to a promotion, (2) increases effective after [***] and (3) increases in benefits that apply generally to all participants under a Seller Plan, in each case, in the ordinary course of business and consistent with past practices practice, (B) grant, pay or increase any severance, termination, retention or change in accordance with their termscontrol pay or benefits to any Product Employee, (C) terminate the employment of any Product Employee, except for terminations of the employment of Product Employees for misconduct or recognized other acts constituting “cause,” or disclosed (D) adopt, enter into, amend or terminate any Seller Plan (or any plan, agreement, program or policy that would be a Seller Plan if it were in the most recent Company Financial Statements or in the HL SEC Reports, existence as applicable, or incurred since of the date hereof) that applies solely to Product Employees or (E) agree or commit to do any of such financial statements(A), (iiB), (C) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such SubsidiaryD); or
(uxii) Agree in writing or otherwise agree or commit to take do any of the actions described foregoing.
(b) Purchasers acknowledge and agree that nothing contained in Section 7.1(a) through (t) above. Notwithstanding this Agreement shall give Purchasers, directly or indirectly, the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents right to control or direct Sellers’ or their Affiliates’ operations prior to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this AgreementClosing.
Appears in 1 contract
Conduct Prior to Closing. 7.1 Conduct Without in any way limiting any other obligations of Business by HLSeller hereunder, the Company, Parent, and Merger Sub. During during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant hereof to its terms and the Closing Time:
(a) Seller will conduct, and will cause the “Interim Period”), each of HLDXP Affiliates to conduct, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (Business in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licenseesOrdinary Course, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statementsSeller will not, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make permit the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 heretoDXP Affiliates to, without the prior written consent of HL (in Purchaser, enter into any transaction or refrain from doing any action that, if effected before the case date of this Agreement, would constitute a request by breach of any representation, warranty, covenant or other obligation of Seller contained herein, and provided further that Seller will not, and will not permit the Company) DXP Affiliates to, enter into any new customer Contract or supply or arrangement, or any other material Contract Related to the Company (in Business, or make any material decisions or enter into any material Contract with respect to or Related to the case Business, without the consent of a request by HL)Purchaser, which consent shall will not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;. {00906776.2 } 00900835.10 26
(b) Grant Seller will use its best efforts to obtain all Required Consents, and, if applicable, give or obtain the notices, consents and approvals required under any other material severance Contract to which Seller, or, if applicable, any DXP Affiliate, is a party to or termination pay to (i) any officer or (ii) any employeebound by, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on for the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case completion of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;transactions contemplated herein.
(c) AbandonSeller will use its best efforts to obtain an agreement (a “Purchaser MSA”) between Purchaser and Sequential Technologies International that is the same in all material respects as the Master Services Agreement between Sequential Technologies International and Synchronoss Technologies, allow to lapseInc. dated September 7, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any Person future patent rights, other than in the ordinary course of business consistent with past practices;2017 and SOW 1 thereto.
(d) DeclareSeller will use its best efforts, set aside or pay any dividends and cause each DXP Affiliate to use, its best efforts, to preserve intact, the Business and the Acquired Assets, and to carry on or make any other distributions (whether in cashthe Business and the affairs of Seller and the DXP Affiliates as currently conducted, stockand to promote and preserve for Purchaser the goodwill of customers, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of suppliers, SNCR Employees and others having business relations with Seller and the Company DXP Affiliates Related to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;Business.
(e) PurchaseSeller will pay and discharge, redeem or otherwise acquireand cause the DXP Affiliates to pay and discharge, directly or indirectlytheir liabilities and obligations, any shares of capital stock or other equity securities or ownership interestsincluding, without limitation, obligations to SNCR Employees, in the Ordinary Course, except with respect to Converting Shareholders;those contested in good faith by Seller or DXP Affiliate.
(f) IssueSeller will take, deliverand cause each DXP Affiliate to take, sellall necessary action, steps and proceedings to approve or authorize, pledge validly and effectively, the execution and delivery of this Agreement and all Related Agreements, and, if applicable, any other agreements and documents contemplated hereby or otherwise encumberthereby, and the completion of the transfer of the Acquired Assets to Purchaser or, if applicable, an Affiliate of Purchaser, and to cause all necessary meetings of directors and shareholders of Seller and the DXP Affiliates to be held, or agree resolutions signed or consented to any of the foregoing with respect toin writing, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;purpose.
(g) Amend its Charter Documents Seller will promptly notify Purchaser in any material respect, except as contemplated by Section 8.2 hereunder;writing:
(hi) Acquire or agree to acquire by merging or consolidating with, or by purchasing regarding any equity interest in or development which has a material portion of the assets 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 outside the ordinary course of business any assets which are materialMaterial Adverse Effect, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(iii) Sell, lease, license, encumber if they determine that a state of facts exists which will result in a representation or otherwise dispose of any properties or assets, except (A) sales warranty contained in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken Article III hereof being untrue as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunderClosing Date, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course breach of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take any of the actions described condition set out in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this 6.01 or Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement6.02.
Appears in 1 contract
Samples: Asset Purchase Agreement (Synchronoss Technologies Inc)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, Within the Company, Parent, and Merger Sub. During the period from four (4) months prior to the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shallhereof, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or Section 4.37 of the Schedule, CoreWest has conducted its business only in the ordinary course, and except as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, resulting from their Agreement and the Xxxxxxxx-Xxxxx Acttransactions contemplated hereby, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the followingCoreWest has not:
(a) Waive issued, sold or delivered any share repurchase rights, accelerate, amend shares of its capital stock or (except as specifically provided for herein) change the period of exercisability of options issue or restricted stocksell any securities convertible into, or reprice options granted under with respect to, or warrants to purchase or rights to subscribe to, any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any shares of such plansits capital stock;
(b) Grant effected any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(c) amended its articles of incorporation or by-laws;
(d) merged or consolidated with, or, except as a result of foreclosure or repossession in the ordinary course of its mortgage banking business, acquired substantially all of the assets of, any other entity;
(e) sold, transferred, leased or encumbered a material severance amount of assets (other than Excluded Assets) except in the ordinary course of business;
(f) materially altered or termination pay to varied its methods or policies of (i) any officer underwriting, pricing, originating, warehousing, selling and servicing, or buying or selling rights to service, its Mortgage Loans, (ii) hedging (which term includes both buying futures and forward commitments from financial institutions) its mortgage loan positions or commitments, and (iii) obtaining financing and credit;
(g) granted to any employeedirector, except pursuant to applicable Legal Requirementsofficer, employee or consultant any material increase in compensation or benefits (other than as may be required under the terms of written agreements outstanding, or Plans or policies existing in effect on the date hereof and other than normal increases made in the ordinary course of business to officers or employees in accordance with customary past practices and policies);
(h) granted any severance or termination pay (other than as previously may be required under the terms of written agreements in effect on the date hereof) to, or concurrently disclosed entered into or amended any employment or severance agreement with, any person, other than termination pay paid in the ordinary course of business to officers or employees in accordance with customary past practices and policies;
(i) adopted any new or amended any existing director, officer or employee benefit plans (including, without limitation, profit sharing, bonus, director and officer incentive compensation, retirement, medical, hospitalization, life or other insurance plans, arrangements and commitments) or any trust agreement relating thereto;
(j) incurred any debt other than in the ordinary course of business in amounts consistent with past practice;
(k) made any change in accounting principles or methods from those currently employed, except as required by GAAP or by applicable regulatory requirements;
(l) granted any mortgage or security interest in, or made available to the other Partyany pledge of, or in the case permitted any lien or encumbrance to be placed on, any of the Company and its Subsidiaries except in connection with the promotion, hiring assets or firing of any employee properties other than in the ordinary course of business consistent with past practice;
(cm) Abandoncanceled, allow to lapsewaived, transfer, sell, assign, released or license to any Person or otherwise extend, amend or modify compromised any material rights to any Intellectual Property debt or enter into grants to transfer or license to any Person future patent rightsclaim, other than upon payment in the ordinary course of business consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except with respect to Converting Shareholders;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereunder, or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunderfull;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets failed to maintain in any material manner or make any material change in accounting methods, principles or practicesfull force and effect all existing insurance policies and fidelity bonds;
(o) Except taken any action, or failed to take any action, that would result in a breach or violation of the ordinary course representations and warranties of business consistent with past practices, incur Sellers contained in this Agreement or enter into caused any agreement, contract or commitment requiring such Party condition to pay in excess of $1,000,000 in any 12-month periodthe transactions contemplated hereby not to be satisfied;
(p) Make accelerated, terminated, modified or rescind canceled any Tax elections thatmaterial contract, individually lease, or in the aggregate, would be reasonably likely license to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in which CoreWest is a manner inconsistent with past practiceparty;
(q) Form entered into any employment or establish collective bargaining agreement, or modified any subsidiary except in the ordinary course of business consistent with prior practice existing employment or as contemplated by this Agreement;collective bargaining agreement; and
(r) Permit any Person agreed to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take do any of the actions described foregoing included in Section 7.1(a(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(dq), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Imc Mortgage Co)
Conduct Prior to Closing. 7.1 Conduct From the date of Business by HLthis Agreement to and including the Closing, unless Transco shall otherwise agree in writing, the Company, Parentbusiness of the Company shall be conducted in the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law, and Merger Subthe Company and its Subsidiaries shall use commercially reasonable efforts to preserve substantially intact the business organization of the Company and its Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and its Subsidiaries and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers, manufacturers, distributors, landlords and other persons with which the Company and its Subsidiaries have significant business relations. During The Company and its Subsidiaries will maintain the period from compensation and terms of employment currently paid to the officers and principal employees of the Company and its Subsidiaries substantially unchanged until the Closing. By way of illustration and not limitation, except as otherwise contemplated by this Agreement, the Company and its Subsidiaries shall not, between the date of this Agreement and continuing until the earlier Effective Time, do any of the termination of this Agreement pursuant to its terms and the Closing (the “Interim Period”), each of HL, the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, following without the prior written consent of HL Transco (in the case of a request by the Company) or the Company (in the case of a request by HL), which such consent shall not to be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:):
(a) Waive declare, make or pay any share repurchase rightsDistribution, accelerate, amend except (i) dividends payable in respect of the Company Preferred Stock pursuant to the Certificate of Incorporation of Holdings as in effect on the date hereof to the extent satisfied in full at or prior to Closing through either (x) conversion of Company Preferred Stock into Company Common Stock included within the Closing Common Shares or (except y) payment in cash of accrued and unpaid dividends on the Company Preferred Stock to the extent deducted from the Gross Cash Consideration at Closing and (ii) such distributions of stock or other securities, if any, as specifically provided for herein) change may be deemed to occur as part of the period Preliminary Merger; provided, however, that prior to the Closing the Company may effect such stock split or splits as may be necessary to ensure that the number of exercisability of options or restricted stockClosing Common Shares will equal 1,176,470, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plansas close thereto as practicable;
(b) Grant acquire any material severance corporation, partnership, other business organization or termination pay to division thereof;
(c) incur any Debt or other obligations, except (i) any officer or Permitted Debt and (ii) any employee, except pursuant to applicable Legal Requirements, written agreements outstanding, or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the obligations other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee than Debt incurred in the ordinary course of business and consistent with past practice;
(cd) Abandon, allow to lapse, transfer, sell, assign, or license to any Person or otherwise extend, amend or modify enter into any material rights to any Intellectual Property contract, lease or enter into grants to transfer or license to any Person future patent rights, agreement other than in the ordinary course of business business, consistent with past practices;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stockpractice;
(e) Purchaseauthorize capital expenditures in excess of, redeem or otherwise acquirefail to make capital expenditures substantially in accordance with, directly or indirectly, any shares of the Company's fiscal 1998 capital stock or other equity securities or ownership interests, except with respect to Converting Shareholdersexpenditure budget;
(f) Issue, deliver, sell, authorize, pledge enter into any employment or otherwise encumberconsulting agreement, or agree increase the compensation payable to its officers, employees or consultants, except for increases in accordance with existing agreements or past practices, or grant any of the foregoing severance or termination pay to, or enter into any employment or severance agreement with, or enter into any stay bonus or other special compensation arrangements with or with respect to, any shares of capital stock director, officer or other equity securities employee of the Company, or ownership interests or any securities convertible establish, adopt, enter into or exchangeable for shares of capital amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, stay bonus or other equity securities plan, agreement, trust, fund, policy or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable arrangement for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments the benefit of any character obligating it to issue any such sharesdirector, equity securities officer or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunderemployee;
(g) Amend its Charter Documents take any action, other than reasonable and usual actions in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures, inventory management, pricing, billing, warranty and return policies, payment of accounts payable or collection of accounts receivable.
(h) enter into any assets which transactions otherwise than on an arm's- length basis;
(i) enter into or perform any transaction with any Affiliate (as defined below) of the Company (other than transactions entered into (i) among the Company and its Subsidiaries in the ordinary course of business or (ii) as contemplated by this Agreement);
(j) mortgage, pledge or subject to any Lien any of its property, business or Assets, except Liens specified in Section 2.9(b) of the Schedule of Exceptions and except materialmen's liens securing payments not yet due, tax liens in respect of Taxes not yet due and other statutory liens in respect of obligations not yet due and that are materialnot, individually or in the aggregate, material to the business of such Party Company and its Subsidiaries or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition of property or their respective assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as contemplated by Section 8.15 hereundermake any material gifts or sell, lease, transfer or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, (i) adopt or materially amend exchange any Plan (including any Plan that provides material property for severance), or enter into any employment contract or collective bargaining agreement (other less than in the ordinary course of business consistent with past practice), (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practicesfair market value thereof;
(l) (i) Pay, discharge, settle or satisfy release any material claimsclaim;
(m) amend the charter or by-laws of the Company or any of its Subsidiaries, liabilities or obligations except the filing of the Restated Certificate in substantially the form attached hereto as Exhibit 1.4 (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced which filing the Company agrees to make prior to the date of this AgreementEffective Time);
(n) other than the payment, discharge, settlement allow any material Permit to lapse or satisfaction of terminate or fail to renew any claims, liabilities or obligations in the ordinary course of business consistent with past practices or material Permit in accordance with their termsprudent business practice;
(o) enter into, amend, extend, terminate or recognized permit any renewal notice period to lapse with respect to any lease or disclosed in the most recent Company Financial Statements any other contractual obligation that contains either consideration to be given or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given performed by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is of a party value exceeding $25,000 or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;term exceeding one year; or
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice or as contemplated by this Agreement;
(r) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter enter into any material transaction with contractual obligation, or distribute or advance make any assets or property promise, to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiary; or
(u) Agree in writing or otherwise agree or commit to take do any of the actions described things referred to in Section 7.1(aclauses (a) through (to) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreement.
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Labtec Inc /Ma)
Conduct Prior to Closing. 7.1 Conduct of Business by HL, the Company, Parent, and Merger Sub. (a) During the period from beginning on the date of this Agreement and continuing until ending on the earlier of (x) the Closing Date and (y) the date of termination of this Agreement pursuant to its terms and the Closing in accordance with Article 8 (the “Interim Pre-Closing Period”), each of HLthe Sellers shall, and shall cause its Affiliates to, (a) conduct its business with respect to each Product and the Acquired Assets in the ordinary course and in accordance with applicable Law and (b) use commercially reasonable efforts to preserve the Product Business and otherwise maintain the tangible Acquired Assets in good condition. Except as set forth on Schedule 6.1(a) of the Seller Disclosure Letter, the CompanySellers shall not, and shall cause their respective Affiliates not to, without the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that HL (in the case consent of a request by the Company) or the Company (in the case of a request by HL) shall otherwise consent Purchaser in writing (which consent shall not to be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 7.1 hereto or as contemplated by this Agreement, carry on its business in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements (except as expressly contemplated by Schedule 7.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. During the Interim Period, HL shall file all Certifications, registration statements, reports, schedules, forms, statements, and other documents required to be filed or furnished to the SEC (“Additional HL SEC Reports”), which Additional SEC Reports shall be prepared in accordance with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act, as the case may be, and the rules and regulations thereunder, and which will not contain any untrue statement of a material fact or omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, except as required or permitted by the terms of this Agreement, the PIPE Subscription Agreements, or as set forth in Schedule 7.1 hereto, without the prior written consent of HL (in the case of a request by the Company) or the Company (in the case of a request by HL), which consent shall not be unreasonably withheld, conditioned or delayed, during the Interim Period, HL, the Company, the Company’s Subsidiaries, Parent, and Merger Sub shall not do any of the following:
(a) Waive any share repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) mortgage, lease, pledge or otherwise Encumber any officer Acquired Assets or (ii) any employeesell, except pursuant transfer, license, lease, permit to applicable Legal Requirements, written agreements outstanding, lapse or Plans or policies existing on the date hereof and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing otherwise dispose of any employee Acquired Assets except for sales of inventory in the ordinary course of business consistent with past practicebusiness;
(cA) Abandonterminate or fail to renew any Acquired Contract, or make any material amendment to or waive any material right or remedy under any such Contract, (B) knowingly take, or fail to take, any action that would constitute a breach, violate the terms, conditions or provisions of, or result in a default under, or give to others any rights of termination, amendment, acceleration or cancellation of any Acquired Contract or (C) enter into any Contract that would be an Acquired Contract;
(iii) (A) abandon, lapse or allow to lapselapse any Acquired Intellectual Property Rights, transfer(B) fail to make any filings, sellprosecute in good faith or maintain any Acquired Intellectual Property Rights or (C) grant any license, assign, sublicense or license other right with respect to any Person or otherwise extend, amend or modify any material rights to any Acquired Intellectual Property Rights or enter into grants to transfer or license to any Person future patent rightsIn-Licensed Intellectual Property, other than in the ordinary course of business consistent with past practicesbusiness;
(div) Declare, set aside or pay vary any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests, except inventory practices with respect to Converting Shareholders;
any Product (fincluding samples) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing in a manner inconsistent with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, except as contemplated by Section 8.2 hereunder;
(g) Amend its Charter Documents in any material respect, except as contemplated by Section 8.2 hereunder;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets 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 outside the ordinary course of business any assets which are material, individually or in the aggregate, fail to the business of such Party or enter into any joint ventures, strategic partnerships or alliances, or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged, or consolidated entity be included in the Proxy Statement/Prospectus;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) sales in produce and maintain inventory levels and amounts consistent with the ordinary course of business consistent business;
(v) commence, compromise or settle any Action to the extent related to the Product Business or the Acquired Assets;
(vi) fail to pay any applicable Taxes imposed on the Acquired Assets or with past practicerespect to the Product Business as such Taxes become due or payable;
(vii) (A) materially revise or modify any promotional material (including any Labeling) included in the Acquired Regulatory Documentation or (B) add, remove or otherwise alter any references to the Products in any website controlled by any of the Sellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such Party (measured with all of its Subsidiaries, taken as a whole);
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except except as contemplated required by Section 8.15 hereunder, a Governmental Entity or as otherwise required by applicable Legal Requirements or pursuant to an existing Plan, policy or Company Contract, Law;
(iviii) adopt terminate or materially amend modify any Plan ongoing clinical trial (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement (other than in the ordinary course of business consistent post approval study) with past practice), (ii) pay any special bonus or special remuneration respect to any director or employeeProduct, except in the ordinary course event of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the most recent Company Financial Statements or in the HL SEC Reports, as applicable, or incurred since the date of such financial statements, (ii) settle any material litigation where the consideration given by the Party is other than monetary or to which an officer, director or employee of such Person is a party in his or her capacity as such, or (iii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which HL is a party or of which HL is a beneficiary, as applicable;
(m) Except in the ordinary course of business consistent with past practices, modify in any material respect or terminate (other than in accordance with its terms) any Company Material Contract or HL Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law, U.S. GAAP, or IFRS, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such Party to pay in excess of $1,000,000 in any 12-month period;
(p) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect the Tax liability or Tax attributes of such Party, settle or compromise any income Tax liability outside the ordinary course of business or, except as required by applicable Legal Requirements, change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(q) Form or establish any subsidiary except in the ordinary course of business consistent with prior practice safety concern or as contemplated by this Agreement;
(r) Permit otherwise necessary to comply with any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights Governmental Entity or the termination of any cancellation rights issued pursuant to such Plans;
(s) Make capital expenditures in excess of $500,000;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, shareholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such distributions or advancements by a Subsidiary of the Company to the Company or another such Subsidiaryapplicable Law; or
(uix) Agree in writing or otherwise agree or commit to take do any of the actions described in Section 7.1(a) through (t) above. Notwithstanding the foregoing provisions of Sections 7.1(d), (f), and (g) as set forth above, HL hereby consents to the Company’s adoption of its Amended and Restated Articles of Association, the creation of the Company Class A Shares thereunder, and the issuance of an aggregate of 100 Company Class A Shares to certain Company Shareholders, and waives any noncompliance with such Sections. Nothing in this Section 7.1 shall prohibit a Party from taking any action or omitting to take any action as required by this Agreementforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement
