Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned), between the date of this Agreement and the Closing Date, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to): (a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate; (b) take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied; (c) terminate, renew or make any material amendments to any of the Transferred Contracts; (d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest; (e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division; (f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination; (g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller; (h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation; (i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or (j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Westell Technologies Inc)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing Date, the Acquired Companies and the Seller will not conduct the operations take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the CNS Division changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will not, and Seller will cause the other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries SPR Companies not to):, without the prior written consent of Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement:
(a) excluding ordinary course purchases of inventorytake any action to impair, undertake any expenditureencumber, transaction create a Lien against or commitment related to otherwise adversely affect the CNS Division outside assets or properties of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateAcquired Companies;
(b) enter into, amend or violate the terms of any Acquired Company Contract or any SPR Company Customer Contract;
(c) change pricing charged to customers of the Business;
(d) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement;
(e) terminate, or give notice of termination to, any customer or Employee;
(f) hire any Employees except in the Ordinary Course of Business;
(g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business;
(h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof;
(i) adopt or amend or enter into any Employee Plan or Employee Contract;
(j) revalue any of the assets or properties of the Acquired Companies;
(k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing;
(l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened;
(m) take any action, or fail to take any action, that which would result in any of the representations and warranties set forth in Article 4 III not being true and correct on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(cn) terminateissue, renew grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities;
(o) declare, set aside or pay any dividends on or make any material amendments to any of the Transferred Contracts;
other distributions (d) sell or license (other than product sales whether in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity stock or otherwiseproperty) or any other terms of employment in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the Current Employees or adopt, grant extend or increase the rate or terms issuance of any bonusother securities in respect of, insurance pension in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPrights exercisable therefor); or
(jp) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 5.5(a) through Section 6.4(i(o) above, or any other action that would prevent Seller the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunder.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (NightHawk Radiology Holdings Inc)
Conduct Prior to Closing. SECTION 5.1 Conduct Prior to the Closing. Between the date hereof and the Closing:
(a) Except as otherwise expressly permitted by this Agreement within the regular course of business or in connection with its financing activities previously disclosed to Contessa, including, without limitation the Ancillary Agreements and listed on Schedule 6.4the Grace Private Placement, Fullcomm will not enter into any material agreement, contract or commitment, whether written or oral, without the prior written consent of Purchaser Contessa;
(which b) Fullcomm will not pay, incur or declare any dividends or distributions with respect to its shareholders or amend its Certificate of Incorporation or By-Laws, without the prior written consent of Contessa ;
(c) Except for the shares of Common Stock of Fullcomm to be unreasonably withheldissued in connection with the Ancillary Agreements and the Grace Private Placement Agreement, delayed Fullcomm will not authorize, issue, sell, purchase, or conditioned)redeem any shares of capital stock or any options or other rights to acquire ownership interests without the prior written consent of Contessa;
(d) Except within the regular course of business and in its financing activities previously disclosed to Contessa, between Fullcomm will not incur any indebtedness for money borrowed (other than the date South Edge Loan) or issue any debt securities, or incur or suffer to be incurred any liability or obligation of any nature whatsoever, or cause or permit any lien, encumbrance or security interest to be created or arise on or in any of its properties or assets, without the prior written consent of Contessa;
(e) Fullcomm will not make any investment of capital nature either by purchased stock or securities, contribution to capital, property transfer or otherwise, or by the purchase of any property or assets of any other Person;
(f) Fullcomm will not do any other act which would cause representation or warranty of Contessa in this Agreement and the Closing Date, Seller will to be or become untrue in any material respect or that is not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement consistent with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationpast practice;
(g) reassign Fullcomm shall not directly or indirectly (a) solicit any Current Employee working within inquiry or proposals or enter into or continue any discussions, negotiation or agreements relating to (i) the CNS Division sale or exchange of Fullcomm's capital stock or (ii) the merger of Fullcomm with any Person other than Acquisition or (b) provide any assistance or any information to another business unit other otherwise cooperate with any Person in connection with any such inquiry, proposal or division of Sellertransaction;
(h) changeFullcomm will comply with all requirements which federal or state law may impose on it with respect to this Agreement and the transactions contemplated hereby, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or and will promptly cooperate with and furnish written information to Contessa in connection with any Current Employees, except increases pursuant to any applicable law, rule or regulation;such requirements imposed upon the parties hereto in connection therewith; and
(i) revalue any Fullcomm shall grant to Contessa and its counsel, accountants and other representatives, full access during normal business hours during the period to the Closing to all its respective properties, books, contracts, commitments and records and, during such period, furnish promptly to Contessa and such representatives all information relating to Fullcomm as Contessa may reasonably request, and shall extend to Contessa the opportunity to meet with Fullcomm's accountants and attorneys to discuss the financial condition of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderFullcomm.
Appears in 2 contracts
Samples: Merger Agreement (Contessa Corp /De), Merger Agreement (Fullcomm Technologies Inc)
Conduct Prior to Closing. Except as Without in any way limiting any other rights or obligations of Vendor hereunder, during the Interim Period, Vendor shall subject to Section 7.7, unless otherwise expressly permitted contemplated by this Agreement Section 7.7, the designated Representatives of Purchaser otherwise consent in writing:
(1) cause the Target Entities to conduct the Business and listed on Schedule 6.4the operations and affairs of the Target Entities in the Ordinary Course and the Target Entities shall not, without the prior written consent of Purchaser (which will not be unreasonably withheldPurchaser, delayed enter into any transaction or conditioned)refrain from doing any action that, between if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of Vendor in this Agreement and the Closing Dateand, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without without limiting the generality of the foregoing, by way of example, Seller shall not (and Vendor shall cause its Subsidiaries each Target Entity not toto (unless expressly authorized by this Agreement, including Section 7.7):
(a) excluding ordinary course purchases of inventoryamalgamate, undertake any expenditure, transaction merge or commitment related consolidate with or acquire or agree to the CNS Division outside acquire all or substantially all of the ordinary course shares or assets of business and exceeding $200,000 individually or $1,000,000 in the aggregateany Person;
(b) acquire or lease or agree to acquire or lease any business operations or any Equity Interests in any other Person, acquire or agree to acquire any legal or beneficial interest in any real property, or occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property that is not an Asset;
(c) enter into any compromise or settlement of any material litigation or proceeding relating to the Business or any of the Assets;
(d) make any material modification to its usual sales, human resource, accounting, Software, or management practices, processes or systems;
(e) enter into any Contract of the kind described in Section 6.2(14) other than the Covered Credit Agreement, the Limited TM Pipeline LP Indemnity (Covered Credit Agreement) and the other loan, security, intercreditor agreements, instruments and documents that may be required to be entered into pursuant to the foregoing and the replacement of the Credit Agreement by the new credit agreement made as of May 1, 2018 and referred to in the definition of Credit Agreement herein;
(f) knowingly take any action, or fail omit to take any action, that would result in any Target Entity being in violation of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationPrivacy Law;
(g) reassign make any Current Employee working within the CNS Division change to another business unit or division of Sellerits Constating Documents;
(h) change, increase or amend make any unilateral changes to the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationCovered Credit Agreement;
(i) revalue make any commitment or propose, initiate or authorize any single capital expenditure with respect to the Business if the Target Entity’s share is in excess of Ten Million Dollars ($10,000,000) in the aggregate, except in case of: (i) an emergency or catastrophe or other event endangering life or property or concerning the Environment; (ii) as may be necessary for the maintenance of existing facilities, machinery and equipment in good operating condition in the Ordinary Course of Business; (iii) settlement of a Claim disclosed in the Data Room for which Purchaser has provided its prior written consent; or (iv) in respect of amounts which the Target Entity is committed to expend, the details of which amounts have been disclosed to Purchaser in the Data Room;
(j) borrow money or incur or increase any indebtedness for money borrowed or make loans or advances, except for borrowing for working capital or capital expenses in accordance herewith and in the Ordinary Course of Business, or guarantee or otherwise assume liability in respect of any indebtedness for borrowed money of any other Person, in either case, except as contemplated herein and by the Covered Credit Agreement;
(k) surrender or abandon any of the Purchased Assets, excluding except in the Ordinary Course or where the rights of TM Pipeline LP thereto have expired or terminated;
(l) enter into, assign, waive any writing down rights under, amend or terminate, in any material respect, any Material Contract or mutual benefits agreement;
(m) withdraw from or terminate any engagement or consultation process with an Indigenous Group relating to any outstanding provincial Permit or Approval;
(n) sell, lease, encumber or otherwise dispose of any of the value of Inventory consistent with past practices Assets or any part or portion thereof outside the Ordinary Course and GAAPother than Permitted Encumbrances; or
(jo) takechange any method of Tax accounting, make, change or agree rescind any material Tax election, file any materially amended Tax Return, notice of objection or appeal in writing respect of Tax matters or otherwise reply to takeany inquiry from any Governmental Authority in relation to Tax matters, settle or compromise any material Tax liability, agree to an extension or waiver of the actions described statute of limitations with respect to the assessment or determination of Taxes, enter into any agreement with respect to any Tax or surrender any right to claim a material Tax refund, except with respect to the items disclosed in Section 6.4(athe Data Room.
(2) through Section 6.4(i) above, cause each Target Entity not to do any act or any other action thing that would prevent Seller result in a breach of Section 7.1;
(3) cause each Target Entity to use reasonable commercial efforts to continue to maintain in full force and effect all the insurance policies or renewals thereof currently in effect;
(4) cause each Target Entity to take out, at the expense of Purchaser, such additional insurance as may be reasonably requested by Purchaser;
(5) cause each Target Entity to report all claims or known circumstances or events which may give rise to a material claim to its insurers under its insurance policies in a due and timely manner to the Closing Date and provide copies of those reports to Purchaser;
(6) cause each Target Entity:
(a) to use reasonable commercial efforts to preserve intact, the Business, the Assets, and the operations and affairs of the Target Entity; and
(b) subject to Section 7.7, to carry on the Business and the affairs of the Target Entity as currently conducted;
(7) cause the Target Entities to take all prudent steps to ensure that its Representatives comply with all Privacy Law;
(8) cause each Target Entity to pay and discharge the liabilities and Taxes of the Target Entity in the Ordinary Course in accordance and consistent with the previous practice of the Target Entity, except those contested in good faith by the Target Entity;
(9) use reasonable commercial efforts to take all necessary corporate action, steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and to complete the transfer of the Purchased Shares and Purchased Units to Purchaser and to cause all necessary meetings of directors and shareholders of Vendor to be held for that purpose;
(10) cause the Target Entities to use reasonable commercial efforts to take all necessary corporate action, steps and proceedings to authorize, consent and otherwise complete the transfer of the Purchased Shares and Purchased Units to Purchaser and to cause all necessary meetings of directors and shareholders and unitholders of the Target Entities to be held for that purpose; and
(11) shall not request from performing any Governmental Authority any audit or cause Seller not other review in relation to perform its covenants hereunderTaxes, of any Target Entity; file any amended Tax Return, Notice of Objection or Appeal in respect of Tax matters; or otherwise reply to any inquiry in relation to Tax matters, from any Governmental Authority.
Appears in 2 contracts
Samples: Share and Unit Purchase Agreement, Share and Unit Purchase Agreement (Kinder Morgan Canada LTD)
Conduct Prior to Closing. Except as otherwise expressly permitted by Between the date of this Agreement and listed on Schedule 6.4the earlier of the Closing Date or the termination of this Agreement, without the prior written consent of Purchaser (which unless otherwise previously approved by Parent or Buyer in writing, Seller will not be unreasonably withheld, delayed take any action as a result of which any of the changes or conditioned)events described in Section 3.26 of this Agreement would occur. In addition, between the date of this Agreement and the earlier of the Closing DateDate or the termination of this Agreement, unless otherwise previously approved by Parent or Buyer in writing (the decision as to whether to provide such advance approval not to be unreasonably delayed), Seller will not conduct not, without the operations prior written consent of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):Parent or Buyer:
(a) excluding ordinary course purchases of inventorytake any action to encumber, undertake any expenditurecreate a Lien against, transaction materially impair or commitment related otherwise adversely affect the Acquired Assets;
(b) except to the CNS Division outside of comply with existing contractual obligations or commitments contained in Contracts listed on Schedule 1.1(bbbb) (Transferred Contracts), or with respect to non-exclusive license agreements entered into in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any actionconsistent with past practice, buy, or fail enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to take be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any actionoutbound license agreement with respect to, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedAcquired Assets with any third party;
(c) terminatepropose or enter into a Contract with any person, renew other than Buyer, providing for the possible acquisition, transfer or make disposition (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) of any material amendments of the Acquired Assets, other than sales of Products in the ordinary course of business consistent with past practices;
(d) enter into any Contract relating to (i) the sale or distribution of any Product, (ii) the provision of any services or (iii) any of the Acquired Assets, other than agreements for the sale of Products in the ordinary course of business consistent with past practices;
(e) enter into any Contract with any Distributor that is not a Distributor of Products on the date of this Agreement or grant any right of return to any Distributor;
(f) change pricing or royalties charged to customers or licensees of the Acquired Assets;
(g) enter into any strategic arrangement or relationship, development or joint marketing arrangement or agreement;
(h) fire, or give notice of termination to, any Designated Employee;
(i) hire any employees;
(j) increase the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Designated Employee (whether payable in cash, equity compensation or otherwise) except as specifically required by Section 5.9;
(k) grant any severance or termination pay to any Designated Employee (whether payable in cash, equity compensation or otherwise) except as specifically required or (in the case of the termination letters) specifically contemplated by Section 5.9, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Designated Employee on the date hereof;
(l) adopt or amend any Employee Plan, or enter into any Contract with an Employee, other than with respect to the termination letters with Key Employees contemplated by Section 5.9 hereof and the settlement agreements with Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx, Xxx X. Xxxxx and Xxxxx X. Xxxxxx contemplated by Section 6.2(l) hereof;
(m) amend or modify, or violate the terms of, any of the Transferred Contracts;
(dn) sell amend or license modify, or violate the terms of, any of the Lease Agreements or enter into any lease, sublease (other than product sales in the ordinary course of businessReal Property Subleases), assign, lease, transfer, convey license or pledge the Purchased Assets or commit itself other occupancy agreement with respect to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets Leased Real Property; provided, however, that Seller shall not be prohibited hereunder from amending any of the Lease Agreements so as to a security interestsublease, assign or terminate such Lease Agreements at any time after June 30, 2003;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(io) revalue any of the Purchased Acquired Assets;
(p) make or change any election in respect of Taxes, excluding adopt or change any writing down accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the value limitation period applicable to any claim or assessment in respect of Inventory consistent with past practices and GAAPTaxes, in each case relating to the Business, the Products or the Acquired Assets;
(q) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Business (other than as specifically required by Section 6.2(l);
(r) enter into any Contract providing for a Payable as to which Seller receives a payment term of more than sixty (60) days; or
(js) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 5.3(a) through Section 6.4(i(r) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sirenza Microdevices Inc), Asset Purchase Agreement (Sirenza Microdevices Inc)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing Date, DTI Holdings and Seller will not conduct the operations take any action, or fail to take any action, as a result of which any of the CNS Division changes or events described in Section 5.7 of this Agreement would occur. In addition, DTI Holdings and Seller will not, without the prior written consent of Parent or Buyer:
(a) take any action to impair, encumber, create a Lien against or otherwise adversely affect the Acquired Assets;
(b) buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) propose or enter into a Contract with any person, other than Buyer, providing for the possible acquisition, transfer or disposition (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) of the Business or any of the Acquired Assets;
(d) enter into any Contract relating to (i) the sale or distribution of any Product (other than for Contracts entered into in the Ordinary Course of Business), (ii) the provision of any services (other than for Contracts entered into in the Ordinary Course of Business) or (iii) any of the Acquired Assets (other than those Contracts permitted to be entered into without the prior written consent of Parent or Buyer pursuant to subsections (i) or (ii) of this Section 8.3(d));
(e) other than in the ordinary course in a manner consistent with past practice. Without limiting the generality Ordinary Course of Business, change pricing or royalties charged to customers or licensees of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateBusiness;
(bf) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement relating to the Business;
(g) terminate, or give notice of termination to, any Designated Employee;
(h) other than in the Ordinary Course of Business, hire any employees relating to the Business;
(i) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Designated Employee (whether payable in cash, equity compensation or otherwise);
(j) grant any severance or termination pay to any Designated Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Designated Employee on the date hereof;
(k) adopt or amend any Employee Plan, or enter into any Employee Contract;
(l) amend or modify, or violate the terms of, any of the Transferred Contracts;
(m) revalue any of the Acquired Assets;
(n) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, in each case relating to the Business, the Products and the Acquired Assets;
(o) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Business;
(p) take any action, or fail to take any action, that which would result in any of the representations and warranties set forth in Article 4 V not being true and correct on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(cq) terminateexcept for the issuance of shares of DTI Holdings Common Stock upon exercise of presently outstanding options or warrants to purchase such stock, renew issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any shares of capital stock of DTI Holdings or Seller or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such shares or other convertible securities;
(r) declare, set aside or pay any dividends on or make any material amendments to any of the Transferred Contracts;
other distributions (d) sell or license (other than product sales whether in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity stock or otherwiseproperty) or any other terms of employment in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the Current Employees or adopt, grant extend or increase the rate or terms issuance of any bonusother securities in respect of, insurance pension in lieu of or in substitution for shares of its capital stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPrights exercisable therefor); or
(js) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 8.3(a) through Section 6.4(i(r) above, or any other action that would prevent DTI Holdings or Seller from performing or cause either of DTI Holdings or Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. Except (i) as otherwise expressly permitted by this Agreement and listed on Schedule 6.4Agreement, without (ii) with the prior written consent of Purchaser Buyer, or (which will not be unreasonably withheldiii) as required by law, delayed or conditioned)(iv) as detailed in Section 5.3 of the Disclosure Schedule, between during the date of this Agreement and the Pre-Closing DatePeriod, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):not:
(a) excluding ordinary course purchases settle any pending Legal Proceedings or obtain any releases of inventory, undertake any expenditure, transaction threatened Legal Proceedings involving or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateBusiness;
(b) commence or settle any litigation involving or related to the Business;
(c) take any action, or fail to take any action, that which would result in any of the representations and warranties set forth in Article 4 3 not being true and correct on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(c1) terminateincrease the compensation or benefits payable or to become payable to any Employee, renew or make (2) establish, adopt, enter into, amend in any material amendments respect or terminate any Employee Plan; provided, however, that the Seller may take any such action to any the extent required by the terms of the Transferred Contractsan existing Contract or Employee Plan;
(de) sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, transfer or convey or pledge the Purchased Assets or commit itself to sell sell, assign, license, lease, transfer or license convey the Purchased Assets except in the ordinary course of business consistent with past practice;
(f) suffer any Lien (other than product sales the Permitted Liens) on, or damage or destruction or loss of, any Purchased Asset (except for ordinary wear and tear);
(g) enter into, terminate or amend, any Contract with any customer, supplier, lease, reseller or distributor agreement relating to the Business, the Products or the Purchased Assets, except for the Terminated Contracts;
(h) waive, cancel, compromise or release any rights or claims of material value, whether or not in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue take any action, or fail to take any action within its reasonable control, as a result of which any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPchanges or events listed in Section 3.5 would occur; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 5.3(a) through Section 6.4(i5.3(i) abovehereof, or any other action that would prevent Seller from performing performing, or cause Seller not to perform perform, its covenants hereunderor obligations under this Agreement.
Appears in 1 contract
Conduct Prior to Closing. Except From the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly permitted required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by this Agreement applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and listed on Schedule 6.4, without the prior written which consent of Purchaser (which will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associates;
(b) maintain its books of account and records consistent with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), between (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and the Closing Date, Seller will any wholly-owned Company Subsidiary;
(g) not conduct the operations incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the CNS Division Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course in of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a manner consistent with past practice. Without limiting the generality refund of Taxes, consent to any extension or waiver of the foregoinglimitation period applicable to any Tax claim or assessment, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake or take any expenditure, transaction or commitment related other similar action relating to the CNS Division outside filing of any Tax Return or the ordinary course payment of business and exceeding $200,000 individually or $1,000,000 in the aggregateany Tax;
(bl) take any action, or fail to take any action, that would result in any of the representations and warranties except as set forth in Article 4 Schedule 6.5(l) of the Disclosure Schedules, not being true and correct such that adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the conditions Transaction);
(m) other than as set forth in Section 7.4(aSchedule 6.5(m) of this Agreement would the Disclosure Schedules, not be satisfied;
(ci) terminateamend or modify any Material Contract in any material respect, (ii) fail to renew or make terminate any material amendments to any of the Transferred Contracts;
Material Contract or (d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(eiii) enter into any new Employment Agreement with an Employee working within Contract that would have been required to be set forth on Schedule 4.16 of the CNS Division or modify any existing Employment Agreement with an Employee working within Disclosure Schedules had it been entered into prior to the CNS Divisiondate of this Agreement;
(fn) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior not subject to any such terminationEncumbrance any of its properties or assets, including Intellectual Property;
(go) reassign not cancel or compromise any Current Employee working within the CNS Division to another business unit debt or division claim in excess of SellerUS$150,000 or waive or release any material right;
(hp) changenot assume, increase guarantee, endorse or amend the rate of remuneration otherwise become liable or responsible (cashwhether directly, equity contingently or otherwise) or for the obligations of any other terms of employment of Person or make any of the Current Employees loan, advance or adopt, grant extend capital contribution to or increase the rate or terms of investment in any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationPerson;
(iq) revalue any of the Purchased Assetsnot change its accounting practices, excluding any writing down of the value of Inventory consistent with past practices and except as required by U.S. GAAP; or;
(jr) takenot settle or compromise any litigation, or agree in writing release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to take, be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions described set forth in subsections (c)-(r) of this Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder6.5.
Appears in 1 contract
Samples: Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Conduct Prior to Closing. Except as otherwise expressly permitted by ------------------------ this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the earlier of (i) the Closing DateDate and (ii) the termination of this Agreement, Seller will not conduct the operations take any action as a result of which any of the CNS Division other than changes or events described in Section 5.20 of this Agreement would likely or foreseeably occur. In addition, ------------ between -25- the ordinary course in a manner consistent with past practice. Without limiting date of this Agreement and the generality earlier of (i) the foregoing, by way Closing Date and (ii) the termination of examplethis Agreement, Seller will not, without the prior written consent of Parent or Buyer, which consent shall not (and shall cause its Subsidiaries not to):be unreasonably withheld:
(a) excluding ordinary course purchases of inventorytake any action to materially impair, undertake any expenditureencumber, transaction or commitment related create a Lien against the Acquired Assets;
(b) except to the CNS Division outside of comply with existing contractual obligations or commitments or with respect to non-exclusive licenses entered into in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any actionconsistent with past practice, buy, or fail enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to take be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any actionoutbound license agreement with respect to, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedAcquired Assets with any third party;
(c) terminate, renew except to comply with existing contractual obligations or make any material amendments commitments or with respect to any of the Transferred Contracts;
(d) sell or license (other than product sales non-exclusive licenses entered into in the ordinary course of business)business consistent with past practice, assignenter into any Contract relating to (i) the sale or distribution of any Product, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject ii) any of the Purchased Assets Acquired Assets, or (iii) any Licensed Intellectual Property (subject to a security interestSection 7.2(g) above); --------------
(d) change pricing or royalties charged to customers or licensees of the Acquired Assets;
(e) enter into any new Employment Agreement with an Employee working within strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
Acquired Assets; (f) terminate the employment fire, or give notice of termination to, any Current Designated Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within as permitted under the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment that certain Funding Agreement between Buyer and Seller of any of even date herewith (the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP"Funding Agreement"); or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.-----------------
Appears in 1 contract
Samples: Asset Purchase Agreement (Palm Inc)
Conduct Prior to Closing. Except During the period from the date hereof through the Closing Date except as otherwise expressly contemplated or permitted by this Agreement Agreement, the Equityholders shall cause each Company to operate its Business only in the usual, regular and listed on Schedule 6.4ordinary course consistent with past practice, and shall use its reasonable best efforts to preserve intact its business organization, relationships and assets and maintain its rights, franchises, goodwill and business and Client, customer, officer and employee relations necessary to conduct the Businesses as currently conducted in all material respects. Without in any way limiting the foregoing, during the period from the date hereof through the Closing Date, the Equityholders shall not permit any Company to do any of the following without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned), between the date of this Agreement and the Closing Date, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):Buyer:
(a) excluding ordinary course purchases purchase or redeem, directly or indirectly, any Partnership Interests, Shares or other equity interests in any Company;
(b) issue or sell any Partnership Interests, Shares or other equity interests in any Company;
(c) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for obligations of inventoryany other Person, undertake or make any expenditureloans or advances to any Person, transaction or commitment related to the CNS Division outside of except in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any actionconsistent with past practice, or fail to take issue or sell any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contractsdebt securities;
(d) sell mortgage, pledge or license (other than product sales otherwise encumber any of its material properties or material assets, tangible or intangible, or otherwise dispose of any of its material assets or material properties or cancel, release or assign any indebtedness owed to it or any claims held by it, except in the ordinary course of business)business consistent with past practice;
(e) amend, assignwaive or otherwise modify in any material respect the terms of any of the Investment Contracts, leaseincluding, transferbut not limited to, convey reductions in the amount of fees owing to any Company under such Investment Contracts;
(f) except as required by law or pledge as set forth in the Purchased Assets Disclosure Schedule, (i) grant or commit itself make any change in control, severance or termination payments to sell any Equityholder or license any officer, employee or consultant of any Company except pursuant to plans or agreements in existence on the date hereof, (ii) enter into any option, employment, deferred compensation or other similar agreement (other than product sales an agreement for employment "at will") with any Person (or enter into any amendment to any such existing agreement with any Equityholder or any officer, employee or consultant of any Company), (iii) increase benefits payable under any existing severance or termination pay policies or agreements, (iv) adopt, amend in any material respect or terminate any employment, bonus, profit-sharing, compensation, stock option, pension, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of the Equityholders or officers, employees or consultants, or (v) pay, or provide for, any increase in compensation, bonus or other benefits payable to the Equityholders or officers, directors, employees or consultants of any Company except (A) for normal increases in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices practice, (B) as required by the terms of contracts or agreements in effect on the date hereof, and GAAP; or
(jC) takeas specifically contemplated by this Agreement, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.Employment Agreements and the Servicing Agreement;
Appears in 1 contract
Conduct Prior to Closing. Except From the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly permitted required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by this Agreement applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and listed on Schedule 6.4, without the prior written which consent of Purchaser (which will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associates;
(b) maintain its books of account and records consistent with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), between (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and the Closing Date, Seller will any wholly-owned Company Subsidiary;
(g) not conduct the operations incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the CNS Division Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course in of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a manner consistent with past practice. Without limiting the generality refund of Taxes, consent to any extension or waiver of the foregoinglimitation period applicable to any Tax claim or assessment, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake or take any expenditure, transaction or commitment related other similar action relating to the CNS Division outside filing of any Tax Return or the ordinary course payment of business and exceeding $200,000 individually or $1,000,000 in the aggregateany Tax;
(bl) take any action, or fail to take any action, that would result in any of the representations and warranties except as set forth in Article 4 Schedule 6.5(l) of the Disclosure Schedules, not being true and correct such that adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the conditions Transaction);
(m) other than as set forth in Section 7.4(aSchedule 6.5(m) of this Agreement would the Disclosure Schedules, not be satisfied;
(ci) terminateamend or modify any Material Contract in any material respect, (ii) fail to renew or make terminate any material amendments to any of the Transferred Contracts;
Material Contract or (d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(eiii) enter into any new Employment Agreement with an Employee working within Contract that would have been required to be set forth on Schedule 4.16 of the CNS Division or modify any existing Employment Agreement with an Employee working within Disclosure Schedules had it been entered into prior to the CNS Divisiondate of this Agreement;
(fn) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior not subject to any such terminationEncumbrance any of its properties or assets, including Intellectual Property;
(go) reassign not cancel or compromise any Current Employee working within the CNS Division to another business unit debt or division claim in excess of SellerUS$150,000 or waive or release any material right;
(hp) changenot assume, increase guarantee, endorse or amend the rate of remuneration otherwise become liable or responsible (cashwhether directly, equity contingently or otherwise) or for the obligations of any other terms of employment of Person or make any of the Current Employees loan, advance or adopt, grant extend capital contribution to or increase the rate or terms of investment in any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current EmployeesPerson; (q) not change its accounting practices, except increases pursuant to any applicable law, rule or regulationas required by U.S. GAAP;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (Jinglong Group Co., Ltd.)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4Agreement, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned), between the date of this Agreement and the Closing DateDate (or earlier termination of this Agreement), Sellers and Seller Owner will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):not:
(a) excluding ordinary course purchases enter into any (i) inbound license agreement with respect to the Intellectual Property rights of inventoryany third party, other than shrink-wrap code or (ii) outbound license agreement with respect to any of the Seller’s Intellectual Property or Seller’s Technology;
(b) settle any pending Legal Proceedings or obtain any releases of threatened Legal Proceedings involving or related to the Business;
(c) undertake any expenditure, transaction or commitment exceeding $5,000 individually or $10,000 in the aggregate (other than capital expenditures for which payment is fully made prior to the Closing);
(d) enter into (i) any Contract of the type described in Section 3.13 or Section 4.10, or (ii) any new employment agreement or modify any existing employment agreement (other than to remove any change of control or severance provisions) with respect to GRA;
(e) incur or guarantee any Debt involving or related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateBusiness;
(bf) take any actionfile a petition in bankruptcy, make an assignment for the benefit of creditors or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedfile a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws;
(cg) enter into any agency, partnership, joint venture or trust;
(h) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities;
(i) terminate, renew or make amend or modify any material amendments agreements with respect to any of the Transferred ContractsPurchased Assets;
(dj) sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, convey or pledge the Purchased Acquired Assets or commit itself to sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, convey or pledge the Purchased Acquired Assets or subject any of the Purchased Acquired Assets to a security interest;
(ek) enter into any new Employment Agreement agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with an Employee working within the CNS Division or modify respect to any existing Employment Agreement with an Employee working within the CNS Divisionreal property;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(il) revalue any of the Purchased Assets, excluding any Acquired Assets including writing down of the value of Inventory consistent inventory;
(m) approve or waive any rights with past practices and GAAPrespect to the issuance of any GRA equity or sell any equity interests in GRA;
(n) cause or approve GRA to do any of the foregoing; or
(jo) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(iSections 6.9(a)-(n) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing DateDate (except with respect to the Acquired Assets to be transferred under the Indian Asset Purchase Agreement, for which this Section 7.3 shall survive from the date of this Agreement until the closing of the Indian Asset Purchase Agreement), Seller will not, and Seller will not conduct permit any of its Subsidiaries to, without the operations prior written consent of Purchaser, to the extent related to the Acquired Business:
(a) take any action to impair, encumber or create a Lien (other than Permitted Liens) against the Acquired Assets;
(b) other than for Contracts entered into in the Ordinary Course of Business, buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Acquired Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the CNS Division Acquired Assets with any third party;
(c) other than for Contracts entered into in the Ordinary Course of Business, enter into any Contract relating to (i) the sale or distribution of any Product, (ii) the provision of any services or (iii) any of the Acquired Assets;
(d) change pricing or royalties charged to customers or licensees of the Acquired Business if such changes would require approval at a the level of product line manager or greater;
(e) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement relating to the Acquired Business;
(f) amend or modify, or violate the terms of, any of the Assumed Contracts;
(g) revalue any of the Acquired Assets, including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable, other than in the ordinary course Ordinary Course of Business and in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(bh) to the extent that doing so would adversely impact the Acquired Business in the hands of Purchaser, the Products and the Acquired Assets , make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, in each case relating to the Acquired Business, the Products and the Acquired Assets;
(i) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Acquired Business;
(j) take any action, or fail to take any action, that which would intentionally result in any of the representations and warranties set forth in Article 4 V not being true and correct in all material respect on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(ck) terminatefile a petition in bankruptcy, renew make an assignment for the benefit of creditors or make any material amendments to any of the Transferred Contracts;
(d) sell file a petition seeking reorganization or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension arrangement or other employee benefit plan, payment action under federal or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPstate bankruptcy laws; or
(jl) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a7.3(a) through Section 6.4(i(k) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without 5.1 Conduct of Business Prior to Closing. Without the prior written ------------------------------------ consent of Purchaser (which will not be unreasonably withheldthe Purchaser, delayed or conditioned), between from and after the date of this Agreement until the Closing, the Company and the Closing DateParent shall, Seller will not and shall cause each of their respective Subsidiaries to, conduct the operations of the CNS Division other than its business in the ordinary course in course. Notwithstanding the foregoing and except as contemplated hereby, neither the Company nor any Guarantor shall, nor shall they permit any of their respective Subsidiaries to:
(a) waive or release any material right or benefit or any indebtedness owed to it;
(b) amend or otherwise modify any Material Contract on terms less favorable than those that exist on the date hereof;
(c) change or amend its charter or bylaws;
(d) effect any act or omission which could have a manner consistent with past practice. Without limiting the generality of the foregoingMaterial Adverse Effect;
(e) create any Contingent Obligation, by way of example, Seller shall not (and shall cause its Subsidiaries not to):guarantees or otherwise;
(af) excluding ordinary course purchases declare or pay any dividend or other distribution or payment in cash, stock or property in respect of inventoryshares of its Capital Stock, undertake or adopt or consider any expenditureplan or arrangement with respect thereto or make any direct or indirect redemption, transaction retirement, purchase or commitment related to the CNS Division outside other acquisition of any of its Capital Stock or split, combine or reclassify its outstanding shares of Capital Stock;
(g) issue any shares of Capital Stock or any Option Rights of the ordinary course Company or Overhill Ventures (other than (i) shares of business Common Stock issued upon the exercise of Option Rights set forth on Schedule 3.7(a)) and (ii) Parent --------------- Common Stock issued in settlement of litigation identified on Schedule 3.20 ------------- consistent with past practices);
(h) (i) increase the compensation of any officer or key employee, except as otherwise permitted under Section 3.13(u); (ii) amend any existing --------------- Benefit Plan or adopt any new Benefit Plan; or (iii) enter into any new employment or consulting agreement;
(i) (i) incur any Indebtedness; (ii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any asset of the Company with a value exceeding $200,000 10,000 individually and $50,000 in the aggregate; (iii) purchase or acquire any business or any securities or assets of any business; (iv) enter into any partnership, joint venture or strategic alliance; (v) settle any material litigation in an amount in excess of $1,000,000 50,000; or (vi) accelerate payment on any Indebtedness;
(j) make any Capital Expenditures in excess of $100,000 in the aggregate;
(bk) take any actionfail to preserve intact the business organization of the Company and each of its Subsidiaries, fail to keep available the services of their operating personnel, or fail to preserve the goodwill of those having business relationships with the Company or its Subsidiaries, including, without limitation, customers;
(l) fail to maintain its books and records in accordance with past practices and in conformity with GAAP;
(m) take any actionaction enumerated in Section 3.13 or which would be ------------ prohibited by any other Investment Document determined as if the transactions contemplated by this Agreement had been consummated; or
(n) take, or fail to take, any action so that would result any of the representations or warranties by the Company or any Guarantor contained in this Agreement ceases to be true and correct in all respects. The Company shall notify the Purchaser in writing of the occurrence of any Material Adverse Effect or breach of the representations and warranties set forth in Article 4 not being true and correct such that of the conditions set forth in Section 7.4(a) of Company under this Agreement would not be satisfied;
within one (c1) terminate, renew or make any material amendments to any of day following the Transferred Contracts;
(d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderoccurrence thereof.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing Date, the Seller will not, and will not conduct cause or permit the operations other Members to, take any action, or fail to take any action, as a result of which any of the CNS Division changes or events described in Section 4.6 of this Agreement would occur. In addition, the Seller will not, and will not cause or permit the other than in Members to, without the ordinary course in a manner consistent with past practice. Without limiting the generality prior written consent of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):Buyer:
(a) excluding ordinary course purchases except in the Ordinary Course of inventoryBusiness, undertake buy, or enter into any expenditureinbound license agreement with respect to, transaction Third Party Technology or commitment related the Intellectual Property Rights of any third party to be incorporated in or used in connection with the CNS Division outside Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateAcquired Assets with any third party;
(b) [Intentionally Omitted]
(c) except in the Ordinary Course of Business, enter into any material Contract relating to (i) the sale or distribution of any Product, (ii) the provision of any services, or (iii) any of the Acquired Assets or Acquired Subsidiaries;
(d) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement relating to the Business;
(e) terminate, or give notice of termination to, any Business Employee, other than (1) Business Employees who have been given notice of termination prior to the date hereof, and (2) those Business Employees listed on Schedule 6.4(e);
(f) except in the Ordinary Course of Business, hire any employees relating to the Business, other than employees who have received an offer of employment from a Member prior to the date hereof;
(g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Business Employee (whether payable in cash, equity compensation or otherwise), except in the Ordinary Course of Business or other than any such change, increase or amendment: (i) agreed upon by and between a Member and a Business Employee prior to the date hereof, and (ii) which Seller believes is necessary, after consultation with Buyer, to retain key employees;
(h) enter into any Contract that grants any severance or termination pay to any Business Employee other than with the Business Employees listed on Schedule 6.4(e) (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Business Employee on the date hereof;
(i) except as may be required by Applicable Laws, adopt or amend or enter into any Foreign Plan;
(j) amend, modify or violate any of the material terms of any of the Acquired Contracts;
(k) to the extent that any of the following would affect the Acquired Subsidiaries or adversely affect the Acquired Assets or the Business during the Post-Closing Tax Period (i) make or change any Tax election, (ii) adopt or change any Tax accounting method, (iii) file any Tax Return outside the Ordinary Course of Business (except that Seller or its Affiliates may file Tax Returns for ADC (UK) claiming a UK Group Relief Allocation, subject to Section 6.16(c)(v)), (iv) file any amended Tax Return, except for an amended Tax Return that conforms to the last sentence of Section 6.16(c)(iv) (in which case Buyer need only be provided with post-filing notice of such amended Tax Return but no consent of Buyer will be required), (v) enter into any closing agreement, (vi) settle any claim or assessment in respect of Taxes, or (vii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(l) commence or settle any actions or proceedings or obtain any releases of threatened actions or proceedings involving or relating to the Business;
(m) take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 IV not being true and correct such that on and as of the conditions set forth in Section 7.4(a) of this Agreement Closing Date (except where the failure to be true and correct would not be satisfiedhave a Material Adverse Effect) with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;
(cn) terminateissue, renew grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any shares of capital stock of any Acquired Subsidiary or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any Acquired Subsidiary to issue any such shares or other convertible securities;
(o) declare, set aside or pay any dividends on or make any material amendments to other distributions (whether in cash, capital stock or property) in respect of any capital stock of any Acquired Subsidiary, except in connection with the distribution of cash on hand as of the Transferred Contracts;
(d) sell Closing Date, or license (other than product sales in split, combine or reclassify any such capital stock or issue or authorize the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment issuance of any Current Employeeother securities in respect of, except in lieu of or in substitution for causeshares of such capital stock, provided Seller provides notice to Purchaser prior to or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of such termination;
capital stock (g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) changeoptions, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension warrants or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPrights exercisable therefor); or
(jp) take, or agree in writing or otherwise to take, any of the actions described in Section Sections 6.4(a) through Section 6.4(i(o) above, or any other action that would prevent Seller any Member from performing or cause Seller any Member not to perform its covenants hereunder. In addition to any other obligation set forth in this Section 6.4, Seller will, and will cause the other Members to: (i) notify Buyer of any changes in the pricing or royalties charged to customers or licensees of the Business occurring between the date of this Agreement and the Closing Date and (ii) subject to applicable law, introduce Buyer Group to customers of the Business.
Appears in 1 contract
Conduct Prior to Closing. Except The Company hereby covenants and agrees with AFC, that, prior to the Closing, unless the prior written consent of AFC shall have been obtained (which consent shall not be unreasonably withheld or delayed) and except as otherwise expressly permitted by this Agreement contemplated herein, the Company and listed on Schedule 6.4each of the Subsidiaries shall operate its business, and shall cause its subsidiaries to operate their respective businesses, only in the usual, regular, and ordinary course and in accordance with past practices and to use its best efforts to preserve intact its business organization and assets, and those of its subsidiaries, and to maintain its and its subsidiaries’ materially important rights and franchises. From the date hereof until the Closing, the Company covenants and agrees that it will not do or agree or commit to do, and will not permit any of the Subsidiaries to do or agree or commit to do, without the prior written consent of Purchaser AFC, any of the following: 26
5.1.1 Incur any Liabilities or Obligations in excess of $50,000, in the aggregate, except for insurance liabilities or obligations incurred by APLIC in the ordinary course of its insurance business under its standard underwriting procedures; or make any loans or advances (which will not except for policy loans made in the ordinary course of business pursuant to the terms of insurance contracts) or acquire any equity, debt, or other investment securities except for acquisitions of such securities in the ordinary course of its insurance business and in accordance with its established investment policies and guidelines;
5.1.2 Grant any general increase in compensation to its employees as a class, or any increase in compensation to any of its officers or directors; effect any change in the amount of retirement benefits to any class of employees or officers (unless any such change shall be unreasonably withheldrequired by applicable law); or enter into any employment, delayed severance, or conditioned)similar agreements or arrangements with any directors or officers which, between in the date case of this Agreement and employment agreements, would extend beyond the Closing Date;
5.1.3 Declare or pay any dividend or make any other distribution with respect to its stock or purchase, Seller will not conduct the operations acquire, or redeem or split or combine or reclassify any of the CNS Division shares of capital stock;
5.1.4 Except in compliance with the provisions of Article IX, purchase or otherwise acquire any substantial portion of the assets, or more than 5% of any class of stock or other form of equity interest of any Business Entity;
5.1.5 Except in compliance with the provisions of Article IX, merge or agree to merge with any other Business Entity or permit any other Business Entity to merge into it or consolidate with any other Business Entity;
5.1.6 Liquidate, sell, dispose of, or encumber any assets or acquire any assets, other than in the ordinary course in a manner of business consistent with past practice. Without limiting , or involving amounts less than $100,000 per transaction;
5.1.7 Issue any common shares or shares of any other class or permit any of its common shares or shares of any other class held in its treasury to become outstanding;
5.1.8 Issue or grant or extend the generality term of any option, warrant, conversion or stock appreciation right not in existence on the date hereof;
5.1.9 Propose or adopt any amendments to its corporate charter or Bylaws;
5.1.10 Enter into any business not conducted by the Company or one of the foregoing, by way Subsidiaries as of example, Seller shall not (and shall cause its Subsidiaries not to):the date of this Agreement;
(a) excluding ordinary course purchases of inventory, undertake 5.1.11 Propose or adopt any expenditure, transaction or commitment related changes to the CNS Division outside of accounting principles used by the ordinary course of business Company and exceeding $200,000 individually the Subsidiaries, except as required by generally accepted accounting principles or $1,000,000 in statutory accounting principles, as the aggregatecase may be, and then only after consultation with AFC;
(b) take 5.1.12 Enter into any action, transactions with any Subsidiaries or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (Affiliates other than product sales in the ordinary course of business; or 27
5.1.13 Pay any debt owed by the Company or any Subsidiary to the Company or any other Subsidiary or to any Affiliate of the Company.
5.1.14 Issue or enter into any agreement, arrangement or understanding to issue any of its capital stock or grant options, warrants, rights or securities convertible into, exchangeable for or which contain the right to purchase any of the Company's capital stock.
5.1.15 Make any change in the business conducted by the Company and the Subsidiaries;
5.1.16 Make capital expenditures or enter into any contracts or commitments therefor in excess of an aggregate of $50,000;
5.1.17 Enter into any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 4.19.1 if in effect on the date hereof or enter into any contract which requires the consent or approval of any third party to consummate the transactions contemplated by this Agreement; or make any material modification to any existing agreement or to any Permits, other than changes make in good faith to cure document deficiencies;
5.1.18 Enter into any contract for the purchase, lease (as lessee) or other occupancy of real property or exercise any option to extend a lease listed in Schedule 4.15.1 or Schedule 4.15.2;
5.1.19 Sell, lease (as lessor), assigntransfer or otherwise dispose of (including any transfers from the Company or any Subsidiary to any of their Affiliates), leaseor mortgage or pledge, transferor impose or suffer to be imposed any lien, convey charge or pledge encumbrance on, any of the Purchased Assets assets of the Company or commit itself to sell or license (any Subsidiary, other than product sales inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of businessbusiness consistent with past practice;
5.1.20 Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other Business Entity;
5.1.21 Alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company;
5.1.22 Cancel any debts owed to or claims held by the Company or any Subsidiary (including the settlement of any claims or litigation) other than in the ordinary course of business consistent with past practice;
5.1.23 Create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13);
5.1.24 Accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice;
5.1.25 Delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice;
5.1.26 Knowingly violate or fail to perform any obligation or duty imposed upon the Company or any Subsidiary by any applicable requirements of law;
5.1.27 Make any tax election or change any method of accounting for tax purposes, assignin each case except to the extent required by law, leaseor settle or compromise any tax liability;
5.1.28 Terminate, transferamend, convey modify or pledge waive any provisions of any confidentiality agreement to which the Purchased Assets Company or subject any Subsidiary is a party (other than those involving AFC);
5.1.29 Make any material change in the accounting policies applied in the preparation of the Financial Statements;
5.1.30 Enter into any agreement, arrangement or understanding to take or omit to take any action which, if taken or omitted to be taken immediately prior to the execution of this Agreement, would have resulted in a modification to any of the Purchased Assets Schedules to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPthis Agreement; or
(j) take, 5.1.31 Enter into any agreement or agree in writing or otherwise commitment to take, take any of the actions described in action prohibited by this Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder5.1.
Appears in 1 contract
Samples: Reorganization Agreement (American Public Holdings Inc)
Conduct Prior to Closing. Except From the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly permitted required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by this Agreement applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and listed on Schedule 6.4, without the prior written which consent of Purchaser (which will shall not be unreasonably withheld, delayed conditioned or conditioneddelayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associates;
(b) maintain its books of account and records consistent with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) except as set forth in Section 7.2(j), between not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and the Closing Date, Seller will any wholly-owned Company Subsidiary;
(g) not conduct the operations incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the CNS Division Disclosure Schedules, not make any commitments for or make capital expenditures in excess of RMB5,000,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course in of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a manner consistent with past practice. Without limiting the generality refund of Taxes, consent to any extension or waiver of the foregoinglimitation period applicable to any Tax claim or assessment, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake or take any expenditure, transaction or commitment related other similar action relating to the CNS Division outside filing of any Tax Return or the ordinary course payment of business and exceeding $200,000 individually or $1,000,000 in the aggregateany Tax;
(bl) take any action, or fail to take any action, that would result in any of the representations and warranties except as set forth in Article 4 Schedule 6.5(l) of the Disclosure Schedules, not being true and correct such that adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the conditions Transaction);
(m) other than as set forth in Section 7.4(aSchedule 6.5(m) of this Agreement would the Disclosure Schedules, not be satisfied;
(ci) terminateamend or modify any Material Contract in any material respect, (ii) fail to renew or make terminate any material amendments to any of the Transferred Contracts;
Material Contract or (d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(eiii) enter into any new Employment Agreement with an Employee working within Contract that would have been required to be set forth on Schedule 4.16 of the CNS Division or modify any existing Employment Agreement with an Employee working within Disclosure Schedules had it been entered into prior to the CNS Divisiondate of this Agreement;
(fn) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior not subject to any such terminationEncumbrance any of its properties or assets, including Intellectual Property;
(go) reassign not cancel or compromise any Current Employee working within the CNS Division to another business unit debt or division claim in excess of SellerRMB1,000,000 or waive or release any material right;
(hp) changenot assume, increase guarantee, endorse or amend the rate of remuneration otherwise become liable or responsible (cashwhether directly, equity contingently or otherwise) or for the obligations of any other terms of employment of Person or make any of the Current Employees loan, advance or adopt, grant extend capital contribution to or increase the rate or terms of investment in any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationPerson;
(iq) revalue any not change its accounting practices, except as required by IFRS;
(r) except as to those litigations, claims, arbitrations and/or proceedings set forth on Schedule 6.5(r) of the Purchased AssetsDisclosure Schedules, excluding not settle or compromise any writing down litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed RMB1,000,000 in the value of Inventory consistent with past practices aggregate and GAAP; orare reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(js) take, or agree in writing or otherwise not commit to take, take any of the actions described set forth in subsections (c)-(r) of this Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder6.5.
Appears in 1 contract
Samples: Share Purchase Agreement (Home Inns & Hotels Management Inc.)
Conduct Prior to Closing. Except During the period from the date hereof through the Closing Date, except as otherwise expressly contemplated or permitted by this Agreement Agreement, the Equityholders shall cause KAR to operate its Business only in the ordinary course consistent with past practice, and listed on shall use their commercially reasonable efforts to preserve intact their business organization, relationships and assets and maintain its rights, franchises, goodwill and business and Client, customer, officer and employee relations necessary to conduct the Business as currently conducted in all material respects. Without in any way limiting the foregoing, during the period from the date hereof through the Closing Date, except as provided in Schedule 6.46.1, the Equityholders shall not permit KAR to do any of the following without the prior written consent of Purchaser Buyer:
(which will a) declare, set aside, make or pay any dividend or other distribution (whether in cash, equity interests or property or any combination thereof) in respect of its Membership Interests, capital stock or other equity interests;
(b) purchase or redeem, directly or indirectly, any Membership Interests, or other equity interests in KAR except as contemplated in Section 2.3 of this Agreement or in the ordinary course in connection with the termination of employment of any Equityholder;
(c) issue or sell any Membership Interests or other equity interests in KAR;
(d) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for obligations of any other Person, or make any loans or advances to any Person, except in the ordinary course of business consistent with past practice, or issue or sell any debt securities;
(e) mortgage, pledge or otherwise encumber any of its material properties or material assets, tangible or intangible, or otherwise dispose of any of its material assets or material properties or cancel, release or assign any indebtedness owed to it or any claims held by it, except in the ordinary course of business consistent with past practice;
(f) except in the ordinary course, amend, waive or otherwise modify in any material respect the terms of any of the Investment Contracts, including, but not be unreasonably withheldlimited to, delayed reductions in the amount of fees owing to KAR under such Investment Contracts except in the ordinary course;
(g) except as required by law or conditionedas set forth in the Disclosure Schedule, (i) grant or make any change in control, severance or termination payments to any Equityholder or any officer, employee or consultant of KAR except pursuant to plans or agreements in existence on the date hereof, (ii) enter into any option, employment, deferred compensation or other similar agreement (other than an agreement for employment "at will") with any Person (or enter into any amendment to any such existing agreement with any Equityholder or any officer, employee or consultant of KAR) other than in connection with the hiring of new employees by KAR in the ordinary course, (iii) increase benefits payable under any existing severance or termination pay policies or agreements, (iv) adopt, amend in any material respect or terminate any employment, bonus, profit-sharing, compensation, stock option, pension, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of the Equityholders or officers, employees or consultants, or (v) pay, or provide for, any increase in compensation, bonus or other benefits payable to the Equityholders or officers, directors, employees or consultants of KAR except (A) for normal increases and bonuses in the ordinary course of business consistent with past practice, (B) as required by the terms of contracts or agreements in effect on the date hereof, and (C) as specifically contemplated by this Agreement and the Employment Agreements;
(h) amend or agree to amend its Organizational Documents (or comparable instruments), between or merge with or into or consolidate with, or agree to merge with or into or consolidate with, any other Person, subdivide or in any way reclassify any shares of its capital stock or its equity interests, or change or agree to change in any manner the rights of its outstanding capital stock or its equity interests;
(i) change in any material respect its accounting practices or principles except as required by law or GAAP;
(j) enter into or recommend that any Fund enter into any type of business different from that conducted by KAR or the Fund as of the date of this Agreement and the Closing Date, Seller will not conduct the operations of the CNS Division or enter into or participate in any additional joint ventures or partnerships;
(k) other than in the ordinary course in of business, acquire direct or indirect control over any Person or make any acquisition of all or a manner consistent with past practice. Without limiting the generality substantial part of the foregoing, by way business or operations of example, Seller shall not (and shall cause its Subsidiaries not to):any Person or dispose of any business or operations;
(al) excluding ordinary course purchases of inventorypay, undertake discharge, settle or satisfy any expenditure, transaction claims or commitment related to the CNS Division outside of Liabilities other than in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateconsistent with past practice;
(bm) take except as directed by a Client, voluntarily divest itself of management of any actionmutual fund or assets under management;
(n) except as and to the extent required, or fail based on the written advice of counsel, in the exercise of its fiduciary obligations, in the case of any Fund, request that action be taken by the Fund Board, other than in connection with the approvals referred to take any action, in Section 6.2(b) hereof and actions in the ordinary course that would result in any of not reasonably be expected to have a Material Adverse Effect on KAR or the representations and warranties Fund.
(o) except as set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) Disclosure Schedule, issue, sell or purchase, or issue any option, warrant, convertible or exchangeable security, right, subscription, call, unsatisfied preemptive right or other agreement or right of this Agreement would not be satisfiedany kind to purchase or otherwise acquire (including, without limitation, by exchange or conversion), or enter into any contracts, agreements or arrangements to issue or sell, any shares of its capital stock or its equity interests;
(cp) terminatecreate, renew renew, amend, terminate or make cancel, or take any material amendments to action that might result in the creation, renewal, amendment, termination or cancellation of, any of the Transferred Contracts;
(d) sell or license (Contract other than product sales in the ordinary course of business)business consistent with past practice;
(q) enter into, assignor agree to enter into, leaseany contract, transfer, convey agreement or pledge the Purchased Assets or commit itself to sell or license (arrangement with any of its Affiliates other than product sales those entered into in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interestbusiness consistent with past practice;
(er) enter into except as set forth in the Disclosure Schedule and except in the ordinary course of business consistent with past practice, incur or assume, or agree to incur or assume, any new Employment Agreement with an Employee working within the CNS Division liability or modify obligation (whether or not currently due and payable) relating to its business or any existing Employment Agreement with an Employee working within the CNS Divisionof its assets;
(fs) terminate the employment of any Current Employeeauthorize, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
agree (g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity by contract or otherwise) or any other terms of employment of commit to do any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderforegoing.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4Agreement, without the prior written consent of the Purchaser (which will consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed; and, if consent is not granted for any reason, the Seller and the Companies shall be deemed not to be in breach of any obligation under this Agreement that otherwise would be caused by the resulting inability of the Seller or the Companies to take the requested action), between the date of this Agreement and the Closing DateDate (or earlier termination of this Agreement), Seller each Company will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries the Seller will ensure each Company does not) do any of the following (other than to the extent constituting Asset Allocation Actions, which are deemed to include, but not be limited to, the matters set forth on Schedule 7.4 hereto):
(a) excluding ordinary course purchases of inventory, undertake enter into any expenditure, transaction or commitment related (i) inbound license agreement with respect to the CNS Division outside Intellectual Property rights of any third party, other than shrink-wrap code; or (ii) outbound license agreement with respect to any Company’s Intellectual Property or Technology, other than for the ordinary course licensing of business and exceeding $200,000 individually or $1,000,000 their products in the aggregateOrdinary Course of Business;
(b) take settle any action, pending Legal Proceedings or fail obtain any releases of threatened Legal Proceedings involving or related to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedeither Company;
(c) terminateenter into (i) except in the Ordinary Course of Business, renew or make any material amendments to any Contract of the Transferred Contractstype described in Section 4.13(a); or (ii) any new employment agreement or modify any existing employment agreement with any Business Employee (other than to remove any change of control or severance provisions);
(d) sell incur (or license guarantee) any additional Debt, other than Debt with respect to which the Companies will be released at Closing;
(e) file a petition in bankruptcy, make an assignment for the benefit of creditors or file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws;
(f) enter into any agency, partnership, joint venture or trust;
(g) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets (other than product sales purchases of inventory and equipment in the ordinary course Ordinary Course of business)Business) or any equity securities;
(h) sell, assign, license, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter , in all cases other than entering into any new Employment Agreement with an Employee working within licenses and sales of business products in the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment Ordinary Course of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationBusiness;
(i) revalue enter into any agreement to purchase any interest in real property or enter into any lease, sublease, license or other occupancy agreement with respect to real property (other than with respect to extensions or renewals of any Leased Real Property, provided, however, that the Companies are not required by this Agreement to exercise any extension or renewal option with respect to any Leased Real Property).
(j) unless otherwise reasonably requested by the Companies’ accountants or required by GAAP, re-value any of the Purchased Assets, excluding any including writing down of the value of Inventory consistent inventory;
(k) issue any equity interests or equity securities;
(l) unless otherwise reasonably requested by the Companies’ accountants or required by GAAP, change any accounting principles, methods or practices, or the manner in which they keep their books and records, or their practices with past practices and GAAPregard to the booking of sales, receivables, payables or accrued expenses or materially alter their payment or collection practices;
(m) make, change or revoke any material Tax election, elect or change any material method of accounting for Tax purposes, settle any Legal Proceeding in respect of Taxes or enter into any Contract in respect of Taxes with any Governmental Body; or
(jn) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderSections 7.4(a)-(m).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (BBQ Holdings, Inc.)
Conduct Prior to Closing. (a) By the LLC. Except as otherwise expressly permitted or required by this Agreement, during the period commencing on the date of this Agreement and listed on Schedule 6.4continuing through the Closing Date, the LLC will not, nor will the Asset Sellers, E&EC or the Company permit the LLC to, without the prior written consent of Purchaser (Buyer which will consent shall not be unreasonably withheld, delayed :
(i) cause or conditioned), between permit any amendments to the date of this Agreement and the Closing Date, Seller will not conduct the operations Charter Documents of the CNS Division LLC or any of its subsidiaries;
(ii) issue, grant, deliver or sell or authorize the issuance, grant, delivery or sale of, or purchase or agree to purchase, any capital stock or membership interests, as the case may be, of the LLC or any of its or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iii) take any action to impair, encumber, create a Lien against any assets related to the Business;
(iv) buy, or enter into any inbound license agreement with respect to, Technology or Intellectual Property Rights of any third party to be incorporated in or used in connection with the Business or sell, lease or otherwise transfer or dispose of, or enter into any agreement with respect to, LLC IP or Transferred Intellectual Property Rights with any third party;
(v) disclose any Covered Technology except to Buyer and its Affiliates and their respective advisers;
(vi) change pricing or royalties charged to customers or licensees of the Business, other than in the ordinary course in a manner of business consistent with past practice. Without limiting practices, or pursuant to contractual obligations in effect on the generality date of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregatethis Agreement;
(b) take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(evii) enter into any new Employment Agreement with an Employee working within definitive strategic arrangement or relationship, agreement or any definitive development or joint marketing arrangement or agreement relating to the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS DivisionBusiness;
(fviii) terminate fire, or give notice of termination to, any of the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationLLC’s five most highly compensated Employees;
(gix) reassign hire any Current Employee working within the CNS Division to another business unit or division of Sellersalaried employees;
(hx) change, increase or amend the rate of remuneration (cash, equity or otherwise) amount of bonuses or other benefits or any other terms of employment of any of Employee (whether payable in cash, equity compensation or otherwise), other than as required by the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationcontractual arrangements in effect on the date of this Agreement;
(ixi) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), other than as required by the terms of contractual arrangements in effect on the date of this Agreement, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof;
(xii) revalue any of the Purchased Assets, excluding any writing down assets of the value Business for accounting purposes;
(xiii) (A) make or change any election in respect of Inventory Taxes or adopt or change any accounting method in respect of Taxes or (B) enter into any closing agreement or settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as specifically required by law or accounting rules;
(xiv) commence or settle any actions, suits, proceedings, arbitration or governmental or regulatory investigations or audits involving or relating to the Business (“Actions or Proceedings”) or obtain any releases of threatened Actions or Proceedings involving payments by or to the LLC exceeding $10,000 in the aggregate;
(xv) make any capital expenditure or commitment exceeding $10,000 individually or $30,000 in the aggregate;
(xvi) pay, discharge or satisfy, in any amount in excess of $10,000 individually or $30,000 in the aggregate, any Liability of the LLC, except with respect to the purchase in the ordinary course of business of chemicals or other supplies necessary to satisfy obligations under existing commitments of the Business;
(xvii) change any accounting methods or practices (including any change in depreciation or amortization policies or rates, except as specifically required by applicable law or accounting rules);
(xviii) declare, set aside or pay any dividend on, or other distribution (whether in cash, stock or property) in respect of any capital stock, or split, combine or reclassify any shares of capital stock;
(xix) terminate, extend, amend or modify the terms of any Contract;
(xx) sell, lease, license or otherwise dispose of any assets (whether tangible or intangible) or properties, including the sale of any accounts receivable, or grant any security interest in such assets or properties, except for inventory in the ordinary course of business consistent with past practices practice;
(xxi) extend or enter into any loan with any Person, or purchase any debt securities of any Person;
(xxii) incur any indebtedness, amend the terms of any outstanding loan agreement, or guarantee of any indebtedness, except for advances to employees for travel and GAAPbusiness expenses in the ordinary course of business consistent with past practices;
(xxiii) waive or release any right or claim in excess of $2,000, including any write-off or other compromise of any account receivable;
(xxiv) lease, license, sublease or permit any other occupancy of the Leased Real Property by any Person other than the LLC or any of its subsidiaries; or
(jxxv) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 11.3(a)(i) through Section 6.4(i11.3(a)(xxiv) above.
(b) By the Asset Sellers and the Company. Except as otherwise expressly permitted or required by this Agreement, during the period commencing on the date of this Agreement and continuing through the Closing Date, none of the Asset Sellers will, without the prior written consent of Buyer:
(i) take any action to impair, encumber, create a Lien against or otherwise adversely affect the Membership Interests or the Acquired Assets;
(ii) sell, lease or otherwise transfer or dispose of, or enter into any other action that would prevent Seller from performing agreement with respect to, any of the Membership Interests or cause Seller not the Acquired Assets;
(iii) revalue any of the Acquired Assets;
(iv) disclose Covered Technology except as permitted in Section 11.16(d); or
(v) amend, waive or modify, or violate the terms of, any of the Transferred Contracts;
(vi) take, or agree in writing or otherwise to perform its covenants hereundertake, any of the actions described in Sections 11.3(b)(i) through 11.3(b)(v) above.
(c) Any consent required by the terms of Section 11.3 will be deemed granted two (2) business days after notice is delivered to Buyer Parent via fax or e-mail, in each case confirmed telephonically by the requesting party or receipt confirmed by Buyer, to both of the employees of Buyer Parent noted below, unless confirmed otherwise in writing by either of such employees of Buyer Parent. Xxx Xxxx Chief Financial Officer xxxxx@xxxxxxxxxxxxxxxx.xxx Fax: (000) 000-0000 Phone: (000) 000-0000 Xxxxx Xxxxxxxx Director, Venture Analysis & Planning xxx@xxxxxxxxxxxxxxxx.xxx Fax: (000) 000-0000 Phone: (000) 000-0000
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing Date, Seller will not conduct without the operations prior written consent of Purchaser, to the extent related to the Acquired Business:
(a) take any action to impair, encumber or create a Lien (other than Permitted Liens) against the Acquired Assets;
(b) other than for Contracts entered into in the Ordinary Course of Business, buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Acquired Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the CNS Division Acquired Assets with any third party;
(c) other than for Contracts entered into in the Ordinary Course of Business, enter into any Contract relating to (i) the sale or distribution of any Product, (ii) the provision of any services or (iii) any of the Acquired Assets;
(d) change pricing or royalties charged to customers or licensees of the Acquired Business if such changes would require approval at a the level of product line manager or greater;
(e) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement relating to the Acquired Business;
(f) amend or modify, or violate the terms of, any of the Assumed Contracts;
(g) revalue any of the Acquired Assets, including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable, other than in the ordinary course Ordinary Course of Business and in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(bh) to the extent that doing so would adversely impact the Acquired Business in the hands of Purchaser, the Products and the Acquired Assets , make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, in each case relating to the Acquired Business, the Products and the Acquired Assets;
(i) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Acquired Business;
(j) take any action, or fail to take any action, that which would intentionally result in any of the representations and warranties set forth in Article 4 V not being true and correct in all material respect on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(ck) terminatefile a petition in bankruptcy, renew make an assignment for the benefit of creditors or make any material amendments to any of the Transferred Contracts;
(d) sell file a petition seeking reorganization or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension arrangement or other employee benefit plan, payment action under federal or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPstate bankruptcy laws; or
(jl) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a7.3(a) through Section 6.4(i(k) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the Closing Date, Seller the Acquired Companies will not conduct the operations take any action, or fail to take any action, as a result of which any of the CNS Division other than changes or events described in Section 3.9 of this Agreement would occur. In addition, the ordinary course in a manner consistent with past practice. Without limiting Acquired Companies will not, without the generality prior written consent of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):Buyer:
(a) excluding ordinary course purchases of inventorytake any action to impair, undertake any expenditureencumber, transaction create a Lien against or commitment related to otherwise adversely affect the CNS Division outside assets or properties of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateAcquired Companies;
(b) enter into, amend or violate the terms of any Acquired Company Contract;
(c) change pricing charged to customers;
(d) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement;
(e) terminate, or give notice of termination to, any customer or Employee;
(f) hire any Employees;
(g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise);
(h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof;
(i) adopt or amend or enter into any Employee Plan or Employee Agreement;
(j) revalue any of the assets or properties of the Acquired Companies;
(k) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any Tax Return unless such Tax Return has been provided to Parent for review within a reasonable period prior to the due date for filing and Parent has consented to such filing;
(l) commence or settle any action, suit, proceeding, claim, arbitration or investigation before any court or administrative agency or obtain any releases of any such action, suit, proceeding, claim, arbitration or investigation that is threatened;
(m) take any action, or fail to take any action, that which would result in any of the representations and warranties set forth in Article 4 III not being true and correct on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(cn) terminateissue, renew grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any shares of capital stock of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such shares or other convertible securities;
(o) declare, set aside or pay any dividends on or make any material amendments to any of the Transferred Contracts;
other distributions (d) sell or license (other than product sales whether in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity stock or otherwiseproperty) or any other terms of employment in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the Current Employees or adopt, grant extend or increase the rate or terms issuance of any bonusother securities in respect of, insurance pension in lieu of or in substitution for shares of its capital stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAPrights exercisable therefor); or
(jp) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 5.3(a) through Section 6.4(i(o) above, or any other action that would prevent Seller the Acquired Companies from performing or cause Seller the Acquired Companies not to perform its covenants hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (NightHawk Radiology Holdings Inc)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned), between From the date of this Agreement and to the Closing Date, Seller and except to the extent that the other parties otherwise consent in writing, Pure or Pure Sub on the one hand, and Doral or Doral Sub on the other hand, will not conduct the operations of the CNS Division other than operate their businesses substantially as presently operated and only in the ordinary course and in a manner consistent compliance with past practiceall applicable laws, and use its best efforts to preserve intact its good reputation and present business organization and to preserve its relationships with persons having business dealings with it. Without limiting the generality of the foregoing, by way from the date of examplethis Agreement through the Closing Date, Seller shall not (and shall cause its Subsidiaries not to):except for actions specifically contemplated in this Agreement, neither Pure or Pure Sub on the one hand, nor Doral or Doral Sub on the other hand, will, without the consent of the other:
(a) excluding ordinary course purchases of inventoryamend its respective organizational documents;
(b) incur any liability or obligation, undertake or settle or negotiate any expenditureliability, transaction obligation or commitment related to the CNS Division outside of receivable, other than in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in encumber or permit the aggregate;
(b) take encumbrance of any action, properties or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedassets;
(c) terminate, renew dispose of or make contract to dispose of any material amendments to any property or assets except Pure Hydrocarbons or Doral Hydrocarbons in the ordinary course of the Transferred Contractsbusiness consistent with past practice;
(d) sell issue, deliver, sell, pledge or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets otherwise encumber or subject to any of the Purchased Assets lien, any equity interests, securities, rights, warrants or options to a security interestacquire, any equity interests;
(e) enter into except as contemplated in this Agreement, (i) declare, set aside or pay any new Employment Agreement with an Employee working within dividends on, or make any other distributions in respect of the CNS Division equity interests, or modify (ii) split, combine or reclassify any existing Employment Agreement with an Employee working within equity interests or issue or authorize the CNS Division;issuance of any other securities in respect of, in lieu of or in substitution for shares of equity interests; or
(f) terminate materially increase benefits or compensation expenses or any officer, director, or other key employee or pay any benefit or amount not required by a Plan or arrangement as in effect on the employment date of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior this Agreement to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(a) through Section 6.4(i) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderperson.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement Without in any way limiting any other obligations of the Company hereunder, and listed on Schedule 6.4, in the case of (d) to (m) except without the prior written consent of Purchaser (which will not be unreasonably withheldthe Investor, delayed or conditioned), between during the period from the date of this Agreement and hereof to the Closing DateTime, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoingCompany shall, by way of example, Seller shall not (and shall cause its Subsidiaries not the Subsidiary to)::
(a) excluding ordinary course purchases of inventoryuse all commercially reasonable efforts to preserve intact the Business and the property, undertake any expenditureassets, transaction or commitment related to the CNS Division outside operations and affairs of the ordinary course of business Company and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any action, or fail Subsidiary and to take any action, that would result in any carry on the Business and the affairs of the representations Company and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (other than product sales Subsidiary in the ordinary course of business), assign, lease, transfer, convey or pledge ;
(b) pay and discharge the Purchased Assets or commit itself to sell or license (other than product sales liabilities of the Company and the Subsidiary in the ordinary course of business);
(c) continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect and give all notices and present all claims under all policies of insurance in a due and timely fashion;
(d) not increase the compensation of employees generally or increase salary or bonus payable to any existing officer, assigndirector, leaseemployee, transfer, convey consultant or pledge the Purchased Assets or subject any agent of the Purchased Assets to a security interestCompany or the Subsidiary;
(e) enter into not declare or pay any new Employment Agreement with an Employee working within the CNS Division dividend or modify make any existing Employment Agreement with an Employee working within the CNS Division;other form of distribution or return of capital to its shareholders; Legal*7415880.1
(f) terminate not enter into any Contract or agreement with any Related Party of the employment Company except in the ordinary course of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationbusiness;
(g) reassign any Current Employee working within not increase borrowings except in the CNS Division to another business unit or division ordinary course of Sellerbusiness;
(h) changenot establish any new employee stock option plan or make any amendments or commitments to improve or otherwise amend any employee stock option plan, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or except as required by applicable Laws and except to increase the rate or terms number of options available for grant under any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or stock option plan in accordance with any Current Employees, except increases pursuant to any applicable law, rule or regulationLaw;
(i) revalue not enter into any material supply arrangements or make any material decisions or enter into any Material Contracts with respect to the Business, other than those entered into in the ordinary course of business, which includes, without limitation, all Contracts entered into in connection with the development of the Purchased AssetsKami Project, excluding any writing down of and as contemplated in the value of Inventory consistent with past practices and GAAP; orTransaction Agreements;
(j) takenot split, consolidate or agree in writing or otherwise to take, reclassify any of the actions described Common Shares in the capital of the Company or the Subsidiary nor undertake any other capital reorganization;
(k) not issue any securities of the Company, other than in accordance with the exercise of Acquisition Rights held by Persons, and not issue Acquisition Rights, except for compensatory purposes to directors, officers, employees of or consultants to the Company pursuant to compensation arrangements, provided that if PRC Approvals have not been obtained by the 90th day following the date of this Agreement, the Company may complete a bona fide equity financing subject to Section 6.4(a2.2(d);
(l) through Section 6.4(inot redeem, purchase or arrange to purchase any securities of the Company; and
(m) abovenot enter into any transaction or refrain from doing any action which, if effected before the date of this Agreement, would constitute a breach of any representation or warranty of the Company hereunder, and not take any action which would result in any representation or warrant in any other Transaction Agreement being incorrect or any covenant of a Venture Entity or the Company in any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderTransaction Agreement being in breach, in each case upon the execution of such agreements.
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement Without in any way limiting any other obligations of the Company hereunder, and listed on Schedule 6.4, in the case of (d) to (m) except without the prior written consent of Purchaser (which will not be unreasonably withheldthe Investor, delayed or conditioned), between during the period from the date of this Agreement and hereof to the Closing DateTime, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoingCompany shall, by way of example, Seller shall not (and shall cause its Subsidiaries not the Subsidiary to)::
(a) excluding ordinary course purchases of inventoryuse all commercially reasonable efforts to preserve intact the Business and the property, undertake any expenditureassets, transaction or commitment related to the CNS Division outside operations and affairs of the ordinary course of business Company and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any action, or fail Subsidiary and to take any action, that would result in any carry on the Business and the affairs of the representations Company and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfied;
(c) terminate, renew or make any material amendments to any of the Transferred Contracts;
(d) sell or license (other than product sales Subsidiary in the ordinary course of business), assign, lease, transfer, convey or pledge ;
(b) pay and discharge the Purchased Assets or commit itself to sell or license (other than product sales liabilities of the Company and the Subsidiary in the ordinary course of business);
(c) continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect and give all notices and present all claims under all policies of insurance in a due and timely fashion;
(d) not increase the compensation of employees generally or increase salary or bonus payable to any existing officer, assigndirector, leaseemployee, transfer, convey consultant or pledge the Purchased Assets or subject any agent of the Purchased Assets to a security interestCompany or the Subsidiary;
(e) enter into not declare or pay any new Employment Agreement with an Employee working within the CNS Division dividend or modify make any existing Employment Agreement with an Employee working within the CNS Divisionother form of distribution or return of capital to its shareholders;
(f) terminate not enter into any Contract or agreement with any Related Party of the employment Company except in the ordinary course of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationbusiness;
(g) reassign any Current Employee working within not increase borrowings except in the CNS Division to another business unit or division ordinary course of Sellerbusiness;
(h) changenot establish any new employee stock option plan or make any amendments or commitments to improve or otherwise amend any employee stock option plan, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or except as required by applicable Laws and except to increase the rate or terms number of options available for grant under any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or stock option plan in accordance with any Current Employees, except increases pursuant to any applicable law, rule or regulationLaw;
(i) revalue not enter into any material supply arrangements or make any material decisions or enter into any Material Contracts with respect to the Business, other than those entered into in the ordinary course of business, which includes, without limitation, all Contracts entered into in connection with the development of the Purchased AssetsKami Project, excluding any writing down of and as contemplated in the value of Inventory consistent with past practices and GAAP; orTransaction Agreements;
(j) takenot split, consolidate or agree in writing or otherwise to take, reclassify any of the actions described Common Shares in the capital of the Company or the Subsidiary nor undertake any other capital reorganization;
(k) not issue any securities of the Company, other than in accordance with the exercise of Acquisition Rights held by Persons, and not issue Acquisition Rights, except for compensatory purposes to directors, officers, employees of or consultants to the Company pursuant to compensation arrangements, provided that if PRC Approvals have not been obtained by the 90th day following the date of this Agreement, the Company may complete a bona fide equity financing subject to Section 6.4(a2.2(d);
(l) through Section 6.4(inot redeem, purchase or arrange to purchase any securities of the Company; and
(m) abovenot enter into any transaction or refrain from doing any action which, if effected before the date of this Agreement, would constitute a breach of any representation or warranty of the Company hereunder, and not take any action which would result in any representation or warrant in any other Transaction Agreement being incorrect or any covenant of a Venture Entity or the Company in any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunderTransaction Agreement being in breach, in each case upon the execution of such agreements.
Appears in 1 contract
Samples: Subscription Agreement (Hebei Iron & Steel Group Co., Ltd.)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Agreement, between the date of this Agreement and the earlier of (i) the Closing DateDate and (ii) the termination of this Agreement, Seller will not conduct the operations take any action as a result of which any of the CNS Division other than changes or events described in Section 5.20 of this Agreement would likely or foreseeably occur. In addition, between the ordinary course in a manner consistent with past practice. Without limiting date of this Agreement and the generality earlier of (i) the foregoing, by way Closing Date and (ii) the termination of examplethis Agreement, Seller will not, without the prior written consent of Parent or Buyer, which consent shall not (and shall cause its Subsidiaries not to):be unreasonably withheld:
(a) excluding ordinary course purchases of inventorytake any action to materially impair, undertake any expenditureencumber, transaction or commitment related create a Lien against the Acquired Assets;
(b) except to the CNS Division outside of comply with existing contractual obligations or commitments or with respect to nonexclusive licenses entered into in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any actionconsistent with past practice, buy, or fail enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to take be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any actionoutbound license agreement with respect to, that would result in any of the representations and warranties set forth in Article 4 not being true and correct such that the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedAcquired Assets with any third party;
(c) terminateexcept to comply with existing contractual obligations or commitments or with respect to nonexclusive licenses entered into in the ordinary course of business consistent with past practice, renew enter into any Contract relating to (i) the sale or make distribution of any material amendments Product, (ii) any of the Acquired Assets, or (iii) any Licensed Intellectual Property (subject to Section 7.2(g) above);
(d) change pricing or royalties charged to customers or licensees of the Acquired Assets;
(e) enter into any strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the Acquired Assets;
(f) fire, or give notice of termination to, any Designated Employee, except as permitted under the terms of that certain Funding Agreement between Buyer and Seller of even date herewith (the "Funding Agreement");
(g) amend or modify, except to the extent required by the terms thereof, or violate the terms of, any of the Transferred Contracts;
(dh) sell adopt or license (other than product sales change any accounting method in the ordinary course respect of business)Taxes, assign, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division closing agreement, settle any claim or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment assessment in respect of any Current EmployeeTaxes, except for cause, provided Seller provides notice to Purchaser prior or consent to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit extension or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any waiver of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant limitation period applicable to any applicable lawclaim or assessment in respect of Taxes, rule or regulation;in each case where such action would reasonably have a Material Adverse Effect; and
(i) revalue any of the Purchased Assets, excluding any writing down of the value of Inventory consistent with past practices and GAAP; or
(j) take, or agree in writing or otherwise to take, take any of the actions described in Section 6.4(aSections 7.3(a) through Section 6.4(i(h) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Be Inc)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4, without (including any action taken by Seller at the prior written consent direction of Purchaser (which will not be unreasonably withheld, delayed Buyer or conditionedits designee pursuant to SECTION 7.2(a)), between the date of this Agreement Signing Date and the Closing Date, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):
(a) excluding ordinary course purchases of inventory, undertake any expenditure, transaction or commitment related to the CNS Division outside of the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregate;
(b) take any action, or fail to take any actionaction within its reasonable control, that which action or inaction would result in cause any of the representations and warranties matters or events set forth in Article 4 not being true and correct such that SECTION 5.26(a) through 5.26(n) to occur. In addition, except in accordance with SECTION 7.2(a), without the conditions set forth prior written consent of Buyer, Seller will not:
(a) take any action which would impair, detract or otherwise harm the Acquired Assets;
(b) buy, or enter into any inbound license agreement with respect to, Third Party Technology or the intellectual property rights of any third party to be incorporated in Section 7.4(a) or used in connection with the Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of this Agreement would not be satisfiedthe Acquired Assets or Licensed Technology with any third party;
(c) terminatepropose or enter into a Contract with any person, renew other than Buyer, providing for the possible acquisition, transfer or make any material amendments to disposition (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) of any of the Transferred Contracts;
(d) sell or license (Acquired Assets, other than product sales with respect to the period between the Signing Date and the Control Date, in the ordinary course of business), assignconsistent with past practices;
(d) enter into any Contract relating to (i) the sale or distribution of any product or the provision of any service by Seller related to the Business or (ii) any of the Acquired Assets, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales with respect to the period between the Signing Date and the Control Date, in the ordinary course of business), assign, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interestconsistent with past practices;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Divisionchange pricing charged to Customers;
(f) terminate enter into any strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such terminationBusiness;
(g) reassign enter into an Employment Agreement, fire without cause or give notice of termination without cause to, or transfer or make any Current Employee working within the CNS Division to another business unit or division offer of Sellertransfer to, any Continuing Employee;
(h) change, increase or amend the rate of remuneration or amount of bonuses or other benefits (including any equity-based remuneration (whether payable in cash, equity or otherwise), bonus or other benefit) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulationContinuing Employee;
(i) amend or modify, or violate the terms of, any of the Transferred Contracts, Consent Required Contracts or Non-Transferred Contracts;
(j) revalue any of the Purchased Acquired Assets, excluding any including writing down of the value of Inventory consistent Inventory;
(k) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Business other than the Actions or Proceedings set forth on SCHEDULE 7.3(k);
(l) remove any tangible asset (that would otherwise constitute a Tangible Asset but for the fact that it was removed) used in or necessary to the Business permanently from the Facilities or from the possession or control of a Continuing Employee;
(m) enter into Contracts with past practices customers in the Restricted Territory, except in accordance with SECTION 7.2(a);
(n) take any action, or fail to take any action, which would result in any of the representations and GAAPwarranties set forth in ARTICLE 5 not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date or to be in breach of any covenant or agreement contained in this Agreement; or
(jo) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSECTIONS 7.3(a) through Section 6.4(i(n) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement and listed on Schedule 6.4Agreement, without the prior written consent of Purchaser (which will not be unreasonably withheld, delayed or conditioned)Buyer, between the date of this Agreement and the Closing Date, Seller will not conduct the operations of the CNS Division other than in the ordinary course in a manner consistent with past practice. Without limiting the generality of the foregoing, by way of example, Seller shall not (and shall cause its Subsidiaries not to):not:
(a) excluding ordinary course purchases of inventory, undertake enter into any expenditure, transaction or commitment related (i) inbound license agreement with respect to the CNS Division outside Intellectual Property Rights of any third party to be incorporated in or used in connection with the Transferred Technology or (ii) outbound license agreement with respect to any of the Purchased Assets, with any third party (other than customers in the ordinary course of business and exceeding $200,000 individually or $1,000,000 in the aggregateconsistent with past practice);
(b) settle any pending Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or related to the Business;
(c) terminate the employment of any Identified Employee;
(d) with respect to any Employee, increase or modify in any material respect the rate of remuneration or any other benefit or consideration (including benefits payable under Employee Plans and whether payable in cash, stock, equity securities, property or otherwise), or any other terms of employment;
(e) with respect to any Employee, grant any severance or termination pay in cash or otherwise, except pursuant to written agreements outstanding as of the date hereof and as disclosed and provided to Buyer, or policies existing, on the date hereof and as previously disclosed in writing or made available to Buyer, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof, or grant any bonus, payment or equity-based compensation to any Employee (except as expressly permitted by this Agreement), whether payable in cash, stock or other securities;
(f) take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Article 4 ARTICLE V not being true and correct on and as of the Closing Date with the same force and effect as if such that representations and warranties had been made on and as of the conditions set forth in Section 7.4(a) of this Agreement would not be satisfiedClosing Date;
(cg) incur or guarantee any indebtedness for borrowed money in excess of $10,000 in the aggregate involving or related to the Business;
(h) file a petition in bankruptcy, make an assignment for the benefit of creditors or file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws;
(i) enter into any agency, partnership, joint venture or trust;
(j) terminate, renew or make any material amendments to any of the Transferred ContractsAgreements;
(dk) sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, convey or pledge the Purchased Assets or commit itself to sell or license (other than product sales in the ordinary course of business)sell, assign, license, lease, transfer, convey or pledge the Purchased Assets or subject any of the Purchased Assets to a security interest;
(e) enter into any new Employment Agreement with an Employee working within the CNS Division or modify any existing Employment Agreement with an Employee working within the CNS Division;
(f) terminate the employment of any Current Employee, except for cause, provided Seller provides notice to Purchaser prior to any such termination;
(g) reassign any Current Employee working within the CNS Division to another business unit or division of Seller;
(h) change, increase or amend the rate of remuneration (cash, equity or otherwise) or any other terms of employment of any of the Current Employees or adopt, grant extend or increase the rate or terms of any bonus, insurance pension or other employee benefit plan, payment or arrangement made to, for or with any Current Employees, except increases pursuant to any applicable law, rule or regulation;
(il) revalue any of the Purchased AssetsAssets including, excluding any without limitation, writing down of the value of Inventory consistent with past practices and GAAPInventory; or
(jm) take, or agree in writing or otherwise to take, any of the actions described in Section 6.4(aSections 7.3(a) through Section 6.4(i7.3(l) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
