Conduct Prior to the Closing. Except as contemplated by this Agreement or with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): (a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; (b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practice; (c) except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets, or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assets; (d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice; (e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; (f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; (g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or (h) modify or amend any existing insurance policy with respect to the Purchased Assets; (i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets; (j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; (k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or (l) authorize any of or commit to take any of the foregoing actions.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
Conduct Prior to the Closing. Except as contemplated by this Agreement or with 5.1 Conduct of Business of the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during Company and its Subsidiaries. During the ------------------------------------------------------- period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement and the Closing, the Company agrees (unless otherwise required by this Agreement or Parent shall cause Seller and has given its Affiliates to, and Seller and prior consent in writing) to carry on its Affiliates will conduct business in the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice practice, to pay its Liabilities and will Taxes consistent with the Company's past practices, to pay or perform other obligations when due consistent with the Company's past practices, subject to any good faith disputes over such Liabilities, Taxes and other obligations and, to the extent consistent with such business, to use reasonable efforts consistent therewith and institute all policies to preserve intact the value of the Purchased Assetsits present business organization, to keep available the services of the Seller’s and its Affiliates’ present officers and employees necessary to provide the services under the Transitional Services and License Agreementkey employees, and to maintain satisfactory preserve its relationships with customers and counterparties to the Assigned Contractscustomers, suppliers, distributors distributors, licensors, licensees, independent contractors and other Persons having material business relationships related dealings with it and to cause its Subsidiaries to do the Assigned Contracts same, all with the express purpose and the licensing intent of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller preserving unimpaired its goodwill and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following ongoing businesses at the Closing. Without limiting the generality of the foregoing, and except Except as otherwise specifically provided in expressly contemplated by this Agreement, neither Seller the Company nor its Affiliates will take any of the following actions, prior to the Closingits Subsidiaries shall, without the prior written consent of Buyer (which consent shall not be unreasonably withheldParent, conditioned take, or delayed):agree in writing or otherwise to take:
(a) amend any of the certificate of organization, operating agreement or other organizational documents or alter actions described in Sections 2.8 (a) through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets(jj) hereof;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions action that would make any of its representations or warranties contained in this Agreement untrue or incorrect or prevent the Company from performing or cause the Company not reasonably be expected to materially perform its agreements and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practicecovenants hereunder;
(c) except in the ordinary course of business consistent with past practice, hire any new employees or engage any new consultants (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets, or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assetsother than co-op student employees who do not receive Company Options);
(d) as it relates to Seller issue additional shares of its capital stock or International Subsidiary onlygrant any warrants, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants options or other rights to acquire any debt securities shares of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any capital stock of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practiceCompany;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(enotwithstanding the action permitted by this Section 5.1 relating to actions described in Section 2.8(o), and (ii) Contracts that would the Company shall not reasonably be expected make any capital expenditures or commitments for additions to materially and adversely impact the ability property, plant or equipment of the Seller and its Affiliates to consummate the transactions contemplated hereby Company constituting capital assets individually in an amount exceeding $5,000 or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice aggregate in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment amount exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets10,000;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actions.
Appears in 1 contract
Conduct Prior to the Closing. On or after the date hereof and prior to the Closing, as relates to the Reorganization, or otherwise consented to or approved in writing by an authorized officer of Purchaser or as contemplated by this Agreement:
(a) HCA shall not act or omit to act, and shall cause the Acquired Entities not to act or omit to act, otherwise than in accordance with the following:
(i) Except as contemplated by this Agreement Section 2.2, none of the Acquired Entities shall amend its respective Constituent Documents;
(ii) Except as contemplated by Section 2.2, no change shall be made in the number or amount of authorized or issued capital stock, partnership interests or membership interests of any of the Acquired Entities; nor shall any other equity security of any kind be granted or issued by any of the Acquired Entities; nor shall any Seller enter into or permit any of the Acquired Entities to enter into any other agreement with respect to any equity security of the prior written consent of Buyer Acquired Entities;
(which consent iii) the Acquired Entities shall not declare or pay dividends or make any other distributions in respect of their Ownership Interests, except as contemplated by or provided in Section 2.2 or 5.7;
(iv) HCA will not make or enter into any commitment to make any capital expenditure at the Facilities or otherwise on behalf of any Acquired Entity in an aggregate amount greater than $50,000;
(v) HCA will not change or permit any change to be unreasonably withheldmade in any accounting policy, conditioned practice or delayed)method of the Acquired Entities except any such changes as are required to conform to modifications in generally accepted accounting principles;
(vi) The Acquired Entities will not (A) incur any indebtedness for borrowed money, during other than intercompany indebtedness which will be forgiven at Closing in accordance with Section 5.11 hereof or included in the period from Indebtedness Adjustment Amount; (B) except as contemplated by Section 2.2, assume, guaranty, endorse or otherwise become liable or responsible for the date obligations of this Agreement any Person other than another Acquired Entity; (C) make any loans, advances or capital contributions to, or investments in, any Person other than another acquired Entity, other than intercompany loans which will be forgiven at Closing in accordance with Section 5.11 hereof; or (D) make any commitments to do any of the foregoing;
(vii) The insurance maintained with respect to the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts Facilities and the licensing of Business, or comparable insurance, shall be maintained in full force and effect until the Purchased AssetsEffective Time;
(viii) No Acquired Entity shall terminate or amend any material Contract, in each case Lease or other agreement to which any Acquired Entity is a party, other than in the ordinary course of business; and
(ix) No Acquired Entity shall agree, provided that it is understood that Parent may take such actions whether in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected writing or otherwise, to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall actions set forth above or described in Section 3.8(b)(i)-(xi) and not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;otherwise permitted by this Agreement.
(b) acquire HCA shall use commercially reasonable efforts not to act or agree omit to acquire by merging act, and shall cause the Acquired Entities to use commercially reasonable efforts not to act or consolidating withomit to act, or by purchasing a substantial portion of otherwise than in accordance with the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except following:
(i) transactions that would not reasonably be expected to materially The operations, activities and adversely impact the ability practices of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in Business shall be conducted consistent with the ordinary course of business consistent and in conformity with past practice;
(cii) except Except as contemplated by or provided in Section 2.2, the ordinary course of respective business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any organizations of the Purchased AssetsAcquired Entities will be preserved intact, or (ii) mortgage, encumber or subject to any Encumbrance any and the services of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary onlypresent employees, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any agents and representatives of the foregoing, Business will be kept available for Purchaser (except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;those employees or relationships terminated for cause); and
(iiii) make any changes in The relationships with, and the existing distribution channels goodwill of, the customers of the Business, except as would be consistent Business and others having business relations with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably will be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionspreserved.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lifepoint Hospitals, Inc.)
Conduct Prior to the Closing. Except as contemplated by this Agreement or with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from a) From the date of this Agreement to hereof until the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will shall: (i) conduct the NetCure Business according to only in the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will practice, perform its obligations under all agreements binding upon it with respect to the NetCure Business or included among the Purchased Assets; (ii) conduct the NetCure Business in accordance with all Applicable Laws; (iii) maintain business insurance consistent with prudent business practice; (iv) use reasonable efforts consistent therewith to preserve the NetCure Business's business organization intact the value of the Purchased Assets, and to keep available the services of the Seller’s Designated Employees, provided, however, that this provision shall not prohibit Seller from discharging any of the Designated Employees for cause; (v) maintain and its Affiliates’ officers and employees necessary to provide preserve the services under goodwill of the Transitional Services and License Agreementsuppliers, and to maintain satisfactory relationships with customers and counterparties others having business relations with the NetCure Business; and (vi) inform Purchaser in advance of any material capital expenditures and promptly of any other material developments in respect of the NetCure Business or Purchased Assets.
(b) Except as otherwise contemplated by this Agreement or permitted by the prior written consent of Purchaser, Seller shall not (and shall not permit any of its Affiliates to) (i) create or permit to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing exist any Encumbrance on any of the Purchased AssetsAssets (other than Permitted Encumbrances and the encumbrances set forth in Section 2.5 of the Disclosure Schedule); (ii) sell or lease, in each case or enter into any agreement with any other person or entity for the sale or lease, directly or indirectly, of any of the Purchased Assets (other than sales of inventory or the disposition of obsolete equipment made in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down ); (iii) amend or otherwise modify the operations terms of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby any Intellectual Property Rights (or any license thereof) included among the Purchased Assets or Buyer’s ability to exploit grant any license of sublicense under or all in respect of any of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, other than licenses to customers and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases suppliers entered into in the ordinary course of business consistent with past practice;
; (civ) except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer amend or otherwise dispose modify the terms of any of the Purchased Assets, Governmental Authorization or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or Private Authorization other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except than in the ordinary course of business or with respect to capital projects approved prior in any manner adverse to the date hereof, enter into NetCure Business; (v) violate any Contract related Applicable Law relating to the Business or operation of the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the NetCure Business or the Purchased Assets; or
(lvi) authorize modify, alter, restate or amend the certificate of incorporation or bylaws of Seller in any manner which would affect the validity, binding nature or enforceability of this Agreement; or commit (vii) knowingly engage in any practice, take any action or omit to take any action or enter into any transaction that would render any of the foregoing actionswarranties and representations of Seller contained in this Agreement to be or become untrue in any material respect.
(c) Seller shall (i) promptly notify Purchaser of (i) any event that renders any representation or warranty of Seller hereunder untrue in any material respect or that constitutes a material breach of any Seller's covenants hereunder, and (ii) any material development affecting the ability of Seller to consummate the transactions contemplated by this Agreement. No disclosure by Seller pursuant to this Section 4.3, however, shall affect or limit the scope of any warranty, representation or covenant of Seller contained in this Agreement or in any other Transaction Document, or limit Seller's liability for damages incurred for any breach of any such warranty, representation or covenant.
Appears in 1 contract
Conduct Prior to the Closing. Except as contemplated by this Agreement or with 5.1 Conduct of Business of the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during Company. During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Closing, Parent shall each Acquired Entity shall, and each Founder agrees to cause Seller and its Affiliates each Acquired Entity to, and Seller and operate its Affiliates will conduct business in the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value practices, except (i) as specifically disclosed in Section 5.1 of the Purchased AssetsDisclosure Schedule, (ii) with the prior written consent of Parent (the decision with respect to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License which will not be unreasonably withheld or delayed), (iii) as specifically permitted or contemplated by this Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates or (iv) as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closingrequired by Law. Without limiting the generality of the foregoing, the Company agrees to pay Indebtedness for borrowed money and Taxes of each Acquired Entity when due (subject to the right of Parent to review and timely approve any Tax Returns in accordance with this Agreement), to use reasonable best efforts to pay or perform other obligations when due, and, to the extent consistent therewith, to use reasonable best efforts to (a) preserve intact the present business organizations of each Acquired Entity, (b) keep available the services of the present officers and Employees of each Acquired Entity, (c) preserve the assets and technology of each Acquired Entity and (d) preserve the relationships of each Acquired Entity with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the goal of preserving unimpaired the goodwill and ongoing businesses of each Acquired Entity at the Closing. The Company shall promptly notify Parent of any Material Adverse Effect involving the Company that arises during the period commencing with the date of this Agreement and continuing until the earlier of the termination date of this Agreement or the Closing. Notwithstanding the foregoing, except as otherwise specifically provided set forth in clauses (i)-(iv) above, no Acquired Entity shall from and after the date of this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed)::
(a) amend make any expenditure or enter into any commitment or transaction exceeding $10,000 individually or $30,000 in the certificate aggregate;
(i) sell or license or transfer to any Person any rights to any Acquired Entity Intellectual Property or Technology or enter into any agreement with respect to any Acquired Entity Intellectual Property or Technology with any Person or with respect to any Intellectual Property Rights or Technology of organizationany Person (other than non-exclusive agreements to license or provide Acquired Entity Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), operating (ii) buy or license any Intellectual Property Rights or Technology or enter into any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than non-exclusive end user license agreements entered into in the ordinary course of business consistent with past practices that do not materially differ from the Standard Form Agreements), (iii) enter into any agreement with respect to the development of any Intellectual Property Rights or Technology with a third party (other than consulting agreements that do not differ in substance from the Consulting Proprietary Information Agreement form), or (iv) terminate, fail to renew, abandon, cancel, let lapse, fail to continue to prosecute or defend any Acquired Entity Intellectual Property;
(c) terminate or extend, or materially amend, waive, modify, or violate the terms of, any Contract disclosed on the Disclosure Schedule (or agree to do so), or enter into any Contract which would have been required to have been disclosed in Section 2.11 or Section 2.14 of the Disclosure Schedule had such Contract been entered into prior to the date hereof;
(d) engage in or enter into any material transaction or commitment, or relinquish any material right, outside the ordinary course of such Acquired Entity’s business consistent with past practice;
(e) enter into or materially amend, waive or modify the terms of any Contract pursuant to which any other party is granted distribution, development or similar rights of any type or scope with respect to any products or technology of any Acquired Entity (other than consulting agreements that do not differ in substance from the Consulting Proprietary Information Agreement form);
(f) create any new Liability of any kind exceeding $10,000 individually or $30,000 in the aggregate, other than (i) as required to consummate the Acquisition (including Third-Party Expenses) and (ii) employee expense obligations arising in the ordinary course of business, consistent with past practice;
(g) initiate or settle any litigation, other than to enforce its rights under this Agreement;
(h) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Shares, or split, combine or reclassify any Company Shares or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Company Shares, or repurchase, redeem or otherwise acquire, directly or indirectly, any Company Shares (or options, warrants or other rights exercisable therefor);
(i) issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Company Shares or any securities convertible into, 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;
(j) except as required by this Agreement, cause or permit any amendments to its Charter Documents or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in of any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsAcquired Entity;
(bk) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock any assets or assets equity securities of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; , or otherwise acquire or agree to acquire any assets that which are material, individually or in the aggregate, to Seller and the International Subsidiarybusiness of any Acquired Entity;
(l) enter into any agreement to purchase or sell any interest in real property, taken as grant any security interest in real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements;
(m) incur or guarantee any Indebtedness or issue or sell any debt securities or guarantee any debt securities or other obligations of others or create a wholeLien over any of its assets;
(n) grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(o) grant any severance or termination pay (in cash or otherwise) to any Employee, including any officer, of any Acquired Entity, except payments made pursuant to the Company Employee Plans set forth in the Disclosure Schedule and provided to Parent or pursuant to standard written agreements outstanding on the date hereof and disclosed in the Disclosure Schedule;
(ip) transactions that would not reasonably be expected hire, offer to materially hire or terminate any Employees, or encourage any Employees to resign from any Acquired Entity;
(q) adopt, amend or fail to maintain any Company Employee Plan, enter into any employment Contract, pay or agree to pay any special bonus or special remuneration to any director or Employee of any Acquired Entity, or increase or agree to increase the salaries, wage rates, or other compensation or benefits of its Employees except payments made pursuant to this Agreement or standard written agreements outstanding on the date hereof and adversely impact disclosed in the ability Disclosure Schedule;
(r) revalue any of its assets (whether tangible or intangible), including without limitation writing off notes or accounts receivable, settle, discount or compromise any accounts receivable, or reverse any reserves other than in the ordinary course of business and consistent with past practice;
(s) pay, discharge, waive or satisfy, in an amount in excess of $10,000 in any one case, or $30,000 in the aggregate, any claim, Liability, loan or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected or reserved against in the Current Balance Sheet;
(t) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement or Tax ruling, settle or compromise any Tax claim or assessment, consent to any extension or waiver of the Seller limitation period applicable to any Tax claim or assessment, or file any Tax Return (including any amended Tax Return) inconsistent with past practices unless such Tax Return has been provided to Parent for review within a reasonable period prior to the due date for filing and its Affiliates Parent has consented to consummate such filing (such consent not to be unreasonably conditioned, withheld or delayed);
(u) enter into any license, distribution, reseller, OEM, joint venture or joint marketing or any similar arrangement or agreement (other than non-exclusive licenses of the transactions contemplated hereby or the Purchased Assets or (ii) purchases Acquired Entity Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practicepractices that do not materially differ in substance from the Standard Form Agreements);
(cv) except in as required by GAAP, adopt or change the ordinary course of business consistent Company’s accounting policies or procedures, including with past practicerespect to reserves for excess or obsolete inventory, (i) selldoubtful accounts or other reserves, leasedepreciation or amortization policies or rates, license, transfer or otherwise dispose of any of the Purchased Assetsbilling and invoicing policies, or (ii) mortgage, encumber payment or subject to any Encumbrance any of the Purchased Assets;
(d) as it relates to Seller collection policies or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assetspractices; or
(hw) modify take, commit or amend agree in writing or otherwise to take, any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Businessactions described in Sections 5.1(a) through 5.1(v), except as inclusive, or any other act or omission that would be consistent with past practice cause or result in all any of its representations and warranties contained herein being untrue or incorrect in any material respects respect at or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionsClosing Date.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct Prior to the Closing. Except 5.1 Seller’s Obligations. Between the date hereof and the Closing Date:
(a) Seller shall give to Purchaser’s officers, employees, attorneys, consultants, accountants and lenders reasonable access during normal business hours to all of the properties, books, contracts, documents, records relating to the Acquired Business, the Purchased Assets and the Transferred Employees and shall furnish to Purchaser such information related to the Purchased Assets and the Transferred Employees as contemplated by this Purchaser may at any time and from time to time reasonably request.
(b) Seller shall use commercially reasonable efforts and make every good faith attempt (and Purchaser shall cooperate with Seller) to obtain (i) the agreement of the landlord under the ABQ Lease to the form of Landlord’s Consent and Estoppel attached hereto as Exhibit C, (ii) the agreement of each counterparty to an MCTM Customer Agreement or and each Web Hosting Agreement to the applicable form of Customer Contract Assignment, Consent and Confirmation attached hereto as Exhibit D and (iii) all other consents (collectively, the “Consents”) required for the lawful assignment of each other Contract and each Third-Party License, each Permit, and the ABQ Lease to be assigned to Purchaser hereunder and which may be required for such assignment to be effective.
(c) Seller shall use and operate the Purchased Assets and continue to employ the Transferred Employees in the usual and ordinary course of business, consistent with past practices and shall use its reasonable best efforts to preserve the Purchased Assets, and shall maintain the Purchased Assets in good operating condition and repair, ordinary wear and tear excepted.
(d) Without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Closing, Parent shall cause Seller and its Affiliates toPurchaser, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without without limiting the generality of the foregoing, and except as otherwise specifically provided in any other provision of this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(b) acquire or agree to acquire by merging or consolidating withcreate, or by purchasing a substantial portion of the stock knowingly permit to be created, any lien against or assets ofsecurity interest in, or by any other mannerotherwise encumber, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practice;
(c) except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets.
(e) [Reserved.]
(f) Seller will not (i) solicit, initiate or encourage the submission of any proposal or offer from any person relating to the acquisition of the Purchased Assets (including any acquisition structured as a sale of assets, sale of capital stock, merger, consolidation or share exchange) or (ii) mortgageparticipate in any discussions or negotiations regarding, encumber furnish any information with respect to, assist or subject to any Encumbrance any of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another personparticipate in, or enter into facilitate in any arrangement having the economic effect of other manner any effort or attempt by any person to do or seek any of the foregoing. Seller will notify Purchaser immediately if any person makes any proposal, except for borrowings offer, inquiry or other contact with respect to any of the foregoing.
(g) Purchaser shall be authorized to discuss with and make offers of employment at will to employees of Seller identified on Schedule 5.1(g) (the “Transferred Employees”) with respect to employment with Purchaser from and after the Closing Date. Any such actions activities shall be conducted (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of during Seller’s normal business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers hours and upon those terms listed on Schedule 5.1(e), reasonable notice to Seller and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing in such a liquidation manner as to minimize disruption to Seller’s workforce. With respect to Transferred Employees offered employment with Purchaser (or dissolutionits affiliates), mergerPurchaser shall ensure that such employee are credited with their tenure with Seller for purposes of eligibility, consolidationvesting, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; orbenefit accrual under Purchaser’s regularly maintained employee benefit plans.
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels As of the BusinessEffective Time, except as would Seller shall cause a complete back-up copy of all data and files stored at the Leased Premises or resident on the Equipment and to which Seller wishes to or may be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely required to have a Material Adverse Effect on access under any MCTM Customer Contract, any Web Hosting Agreement, any Third Party License or any applicable law, rule or regulation to be made and transported to site chosen by Seller other than the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionsLeased Premises.
Appears in 1 contract
Conduct Prior to the Closing. Except as contemplated by this Agreement or with Dignyte, eWellness and the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from Shareholders covenant that between the date of this Agreement and the Closing as to each of them:
(a) Other than as contemplated herein, no change will be made in the Closingcharter documents, Parent shall cause Seller by-laws, or other corporate documents of Dignyte or eWellness.
(b) Dignyte, eWellness and the Shareholders will each use its Affiliates tobest efforts to maintain and preserve Dignyte and eWellness’s business organization, employee relationships, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice goodwill intact, and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having not enter into any material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case commitment except in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practice;.
(c) None of the Shareholders will sell, transfer, assign, hypothecate, lien, or otherwise dispose or encumber the eWellness Shares owned by them.
(d) The Shareholders and eWellness will use their best efforts to maintain and preserve the business organization, employee relationships and goodwill intact of eWellness, and will not allow eWellness to enter into any material commitment except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets, or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assets;business.
(de) eWellness will provide Dignyte with such financial and other information concerning its financial statements, business and operations as it relates may be reasonably required by Dignyte in connection with its efforts to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness reconfirm the investment of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities Dignyte’s shareholders in accordance with the procedures set forth in Rule 419.
(f) Each of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially Dignyte and adversely impact the ability of Seller and eWellness will conduct its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken respective business in the ordinary course and in such a manner so that the representations and warranties contained herein shall continue to be true and correct in all material respects as of business consistent with past practice;
(e) enter into, amend, modify the Closing as if made at and as of the Closing Without the prior written consent of Dignyte or terminate, any Assigned ContractseWellness, except for (i) Contracts with those customers as required or specifically contemplated hereby, each party shall not undertake or fail to undertake any action if such action or failure would render any of said warranties and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability representations untrue in any material respect as of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;Closing.
(g) settle or compromise any litigation related Parties hereto shall give to the Purchased Assets in representative of the other parties prompt written notice of the occurrence or existence of any event, condition or circumstance occurring which Seller would constitute a violation or one of its Affiliates is a defendant (whether or not commenced prior to the date breach of this Agreement) Agreement by such party or settle, pay or compromise any claims not required to be paid, which would render inaccurate in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with material respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of such party’s representations or commit to take any of the foregoing actionswarranties herein.
Appears in 1 contract
Conduct Prior to the Closing. Except as contemplated by 5.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees to conduct the business of Company and to cause its Subsidiaries to conduct the business of the other Acquired Companies, except to the extent that Purchaser shall otherwise consent in writing in accordance with Section 5.3 hereof, in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Acquired Companies when due (subject to Purchaser’s review and consent to the filing of any Tax Return, as set forth in Section 5.1(e) below), to pay or perform other obligations when due, and, to the extent consistent with such business, to preserve intact the present business organizations of the Acquired Companies, to use reasonable efforts within the context of applicable Employment Law to maintain the services of Service Providers employed by the Acquired Companies as of the date hereof and at Closing and preserve the relationships of the Acquired Companies with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the prior written consent goal of Buyer (which consent preserving unimpaired the goodwill and ongoing business of the Acquired Companies at the Closing. The Company shall promptly notify Purchaser of any event or occurrence or emergency not be unreasonably withheld, conditioned or delayed), in the ordinary course of business of the Acquired Companies and any material event involving the Acquired Companies that arises during the period from the date of this Agreement to and continuing until the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value earlier of the Purchased Assets, to keep available the services termination date of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby this Agreement or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except Except as otherwise specifically provided in expressly contemplated by this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior Company shall not and shall cause the other Acquired Companies to the Closingnot, without the prior written consent of Buyer (Purchaser which consent shall not be unreasonably withheld, conditioned or delayed):withheld in accordance with Section 5.3 hereof:
(a) amend cause or permit any modifications, amendments or changes to the certificate of organization, operating agreement Charter Documents or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in of any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsAcquired Company;
(b) undertake any expenditure, transaction or commitment exceeding €50,000 individually or €150,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof;
(c) pay, discharge, waive or satisfy any Liability other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected or reserved against in the Current Balance Sheet;
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by Relevant Accounting Standards;
(e) make or change any material Tax election, adopt or change any Tax accounting method, enter into any Tax Contract, settle any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment or file any material Tax Return unless a copy of such Tax Return has been made available to Purchaser for review a reasonable time prior to filing and Purchaser has approved such Tax Return;
(f) revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any Company Capital Shares, or split, combine or reclassify any Company Capital Shares or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Shares, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Shares (or options, warrants or other rights convertible into, exercisable or exchangeable for Ordinary Shares);
(h) except as required by Law, increase or otherwise change the salary or other compensation payable or to become payable to any Service Provider, or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or other property) of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such person;
(i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except properties or assets (whether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practice;
(j) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan Contract, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(k) incur any Indebtedness for borrowed money, amend the terms of any outstanding loan Contract, guarantee any Indebtedness for borrowed money of any Person, issue or sell any debt securities or guarantee any debt securities of any Person;
(l) waive or release any right or claim of the Acquired Companies, including any write-off or other compromise of any account receivable of the Acquired Companies;
(m) commence or settle any lawsuit, threat of any lawsuit or Proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets;
(n) issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Capital Shares or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other Contracts of any character obligating any of them to issue or purchase any such shares or other convertible securities, except for the issuance of Company Capital Shares pursuant to the exercise of outstanding Options;
(o) (i) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person except in the ordinary course of business consistent with past practice, (ii) purchase or license any Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to the Intellectual Property of any Person, or (iii) enter into any Contract or modify or amend any existing Contract with respect to the development of any Intellectual Property with any Person;
(p) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Acquired Companies;
(q) enter into any Contract 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 Contract with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements, or waive any term or condition thereof or grant any consents thereunder;
(r) grant or otherwise create or consent to the creation of any easement, covenant, restriction, assessment or charge affecting any real property or any part thereof; commit any waste or nuisance on any such property; or make any material changes in the construction or condition of any such property;
(s) unless required by Law or by the terms of the applicable Contract, terminate, amend or otherwise modify (or agree to do so), or violate the terms of, any of the Contracts set forth or described in the Disclosure Schedule;
(t) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock any assets or assets equity securities of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; , or otherwise acquire or agree to acquire any assets which are material or any assets that are materialequity securities, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability business of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practiceCompany;
(cu) unless required by Law or an Applicable CBA, grant any severance, change of control or termination pay (whether payable in cash, equity or otherwise) to any Service Provider, except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assetspursuant to written agreements outstanding, or (ii) mortgagepolicies existing, encumber on the date hereof and as previously made available to Purchaser, or subject to adopt any Encumbrance new severance plan, or amend or modify or alter in any of respect any severance plan or Contract existing on the Purchased Assetsdate hereof;
(dv) as it relates to Seller unless required by Law or International Subsidiary onlyan Applicable CBA, incur adopt, amend or terminate any indebtedness for borrowed money Company Plan, employee benefit plan, policy or guarantee any such indebtedness of another personContract, issue or sell any debt securities employee stock purchase or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another personstock option plan, or enter into any arrangement having employment Contract, collective bargaining agreement, severance or any similar Contract with any Representative Body, pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Service Provider, or increase the economic effect salaries or wage rates or fringe benefits (whether payable in cash, equity or otherwise) (including rights to severance or indemnification) of any of the foregoingits Service Providers, except for borrowings pursuant to written agreements outstanding on the date hereof that have been made available to Purchaser;
(w) send any written communications (including electronic communications) to its Service Providers regarding this Agreement or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby unless such communication is required by Law or Applicable CBA, in which case the Company and Purchaser shall reasonably cooperate with respect to the wording and nature of such communication in accordance with Law;
(x) make any representations or issue any communications to Service Providers that are inconsistent with this Agreement or the Purchased Assets transactions contemplated hereby, including any representations regarding offers of employment from Purchaser unless such communication is required by Law or Applicable CBA, in which case the Company and Purchaser shall reasonably cooperate with respect to the wording and nature of such communication in accordance with Law;
(y) enter into any strategic alliance, affiliate agreement or joint marketing Contract;
(z) enter into or amend any Contract that contains the provisions set forth in Section 2.16(a)(xv)-(xviii);
(aa) waive any stock repurchase rights, accelerate, amend or change the period of exercisability of Options or restricted stock or any other equity or similar incentive awards (including without limitation any long term incentive awards), or reprice Options (through amendment, exchange or otherwise) or authorize cash payments or new equity awards in exchange for any Options, other than as provided by this Agreement;
(bb) hire, offer to hire or terminate any Service Providers without just cause or encourage or otherwise cause any employee to resign from the Acquired Companies;
(cc) unless required by Law or an Applicable CBA, promote, demote or otherwise change the employment status or titles of any Service Provider;
(dd) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(ee) cancel, amend or renew any insurance policy;
(ff) execute any Contract with a data center service provider; or
(gg) take, commit, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a) through 5.1(ff), or any other action that would (i) prevent any Acquired Company from performing, or cause any Acquired Company not to perform, its covenants or agreements hereunder or (ii) incurred cause or taken result in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether respective representations and warranties contained herein being untrue or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionsincorrect.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct Prior to the Closing. Except From the date hereof until the Closing Date:
(a) Each Corporate Seller shall: (i) maintain the Transferred Assets in as contemplated by this Agreement or good repair, working order and condition as at present, ordinary wear and tear excepted; (ii) maintain Inventory at levels consistent with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value requirements of the Purchased Assets, Business; (iii) use its best efforts to keep available to Buyer, the services of the Seller’s its employees and agents and preserve for Buyer its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with suppliers, customers and counterparties to others having business relationships with it; (iv) inform Buyer, on a regular basis, about all matters materially affecting the Assigned ContractsBusiness; (v) maintain its books of account and records in the usual and ordinary manner and in accordance with such Corporate Seller's accounting practices consistently applied; (vi) comply with all laws; (vii) maintain its present insurance in full force and effect, suppliers, distributors with policy limits and scope of coverage not less than is now provided by its present insurance; (viii) pay all accounts payable and other Persons having material business relationships related to obligations (including taxes) on a basis consistent with the Assigned Contracts and the licensing practices of the Purchased Assets, Business as of the date hereof; (ix) take all necessary actions to vest fully any employee of such Corporate Seller who becomes an employee of Buyer in each case his or her benefits under any Pension Plan maintained by such Corporate Seller as of the Closing; and (x) otherwise continue to operate in the ordinary course of its business, provided that it is understood that Parent may take such actions in connection with winding down the operations of .
(b) No Corporate Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closingshall, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except Buyer: (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and change its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or corporate structure, (ii) purchases in the ordinary course of business consistent with past practice;
(c) except in the ordinary course of business consistent with past practiceamend its charter or bylaws, (iiii) sellamend, leasesupplement or terminate any contract, license(iv) incur any liability in excess of $25,000, (v) transfer or otherwise dispose of any of the Purchased Transferred Assets, or other than (iiA) mortgage, encumber or subject to any Encumbrance any the sale of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken Inventory in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (iiB) Contracts the sale of other property that would is not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related material to the Purchased Assets Business and does not have an aggregate value in which Seller excess of $25,000, (vi) grant to its employees any increases in compensation or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settlebenefits, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except other than in the ordinary course of business business, or (vii) transfer its employees to any affiliated operation.
(c) No Seller shall directly or indirectly engage in any negotiations, discussions, or communications with, solicit or entertain offers from, or provide any information to, any persons or entities other than Buyer relating to the sale of all or any portion of any Corporate Seller or all or any portion of the Transferred Assets (other than as permitted by Section 7.1(b)(v) hereof. In addition to specific performance, in the event of any violation of this Section 7.1(c), Buyer shall be entitled to recover from the Sellers (and the Sellers shall be jointly and severally liable for):
(i) all actual and consequential damages suffered by Buyer as a result of such violation and (ii) a bust-up fee ("Bust-Up Fee") equal to the greater of $3,000,000 or the full amount of all excess consideration agreed to be paid to the Sellers for all or any portion of the Transferred Assets sold in violation of Section 7.1(c).
(d) Each Seller shall (i) on a confidential basis consistent with respect the prior agreement of the parties, provide Buyer's employees, agents, and authorized representatives with access to capital projects approved the locations operated by such Seller and to such information and materials regarding such Seller and/or the Business as Buyer may request in connection with its due diligence investigation or to verify the satisfaction of all of the conditions set forth in Article 9 hereof, (ii) cooperate and assist Buyer with its due diligence review to the extent reasonably requested by Buyer and (iii) after the completion of the first phase of Buyer's due diligence review (covering all matters other than customer and other proprietary information), arrange and accompany Buyer on confidential visits with such vendors and customers of the Corporate Sellers as Buyer may request, and provide Buyer with access to such of the employees of the Corporate Sellers as Buyer may request.
(e) Each Seller shall use its best efforts to cause the conditions set forth in Section 9 to be satisfied on or prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionsClosing Date.
Appears in 1 contract
Conduct Prior to the Closing. Except as contemplated by 5.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Closing, the Company agrees (unless the Company is required to take such action pursuant to this Agreement or with the Broadcom shall give its prior written consent of Buyer (in writing which consent shall not be unreasonably withheld) to carry on its business in the usual, conditioned regular and ordinary course consistent with past practice and in any event consistent with the Operating Plan provided prior to the date of this Agreement to Broadcom (any material deviations therefrom or delayedmaterial modifications to the Operating Plan shall be required to be approved in advance by Broadcom), to pay its Liabilities and Taxes consistent with the Company's past practices (and in any event when due), to pay or perform other obligations when due consistent with the Company's past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with such business, to use all commercially reasonable efforts and institute all policies required to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and other Persons having business dealings with it, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Closing. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of Broadcom, take or agree in writing or otherwise to take, any action that would result in the occurrence of any of the changes described in Section 2.9 or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Broadcom's closing obligations in Section 7.1 or Section 7.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case except as set forth in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates Company Disclosure Schedule or as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby required or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in expressly permitted by this Agreement, neither Seller nor its Affiliates will take the Company shall not do, cause or permit any of the following actions, prior to the Closingfollowing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practice;
(c) except in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets, or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actions.Broadcom:
Appears in 1 contract
Conduct Prior to the Closing. (a) Except as contemplated required by applicable Law or as expressly provided in this Agreement or the Additional Agreements, and except in connection with the prior written consent implementation of the Pre-Closing Reorganization Transactions, and except for matters identified in Section 5.01(a) of the Disclosure Letter, from the date of this Agreement through the Closing (or until earlier termination of this Agreement), unless Buyer otherwise consents in advance in writing (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement Parent shall (solely with respect to the ClosingBusiness), Parent and shall cause Seller and each of its Affiliates (solely in respect of the Business) and each of the Transferred Companies to, and Seller and its Affiliates will (x) conduct the Business according in the ordinary course consistent with past practice, (y) use commercially reasonable efforts to preserve intact the Business, and the Transferred Companies’ operations, permits, rights, goodwill, relations with customers, suppliers, distributers, Governmental Authorities and others with which they do business, keep available the services of their executive officers and employees and maintain the assets and properties of the Business in good working order consistent with past practice, and (z) in each case with respect solely to the Seller’s Transferred Companies and its Affiliates’ the Business, to the extent permitted by applicable Laws, not do or permit to be done any of the following:
(i) grant any Lien (other than granting or suffering to exist a Permitted Exception) on any material asset (whether tangible or intangible) of the Business, including any Owned Intellectual Property or Licensed Intellectual Property;
(ii) sell, transfer, license, lease, sublease or otherwise dispose of any Asset having a value in excess of $1,000,000 on an individual basis or $5,000,000 in the aggregate, in each case other than sales of inventory or non-exclusive licenses in the ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith or pursuant to preserve intact Contracts in effect prior to the value date hereof;
(iii) offer, grant, issue, sell, pledge or transfer to any Person any interest or securities in the Transferred Companies, or any securities convertible into or exchangeable or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, interest or securities in the Transferred Companies, or redeem, repurchase or otherwise acquire any interest or securities in the Transferred Companies or make any other change in the capital structure of the Purchased AssetsTransferred Companies;
(iv) change or amend their organizational documents;
(v) (A) award any bonuses to, or increase the compensation or benefits payable or to keep available become payable to, any Business Employee, in each case except (1) in the services ordinary course of business consistent with past practice, (2) pursuant to an Employee Plan or the Sellerterms and conditions of employment of such Business Employee, existing on the date hereof or (3) as required by applicable Law; or (B) establish, adopt, enter into, materially amend or terminate any Company Plan or Parent Plan (or any plan, program or agreement that would be a Company Plan or Parent Plan if in effect on the date hereof), except as required by applicable Law, and except in a manner that (1) similarly affects Parent’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, who participate in each case in the ordinary course of business, provided that it is understood that such Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would Plan or (2) does not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsBusiness Employees;
(bvi) acquire change or agree amend the terms of any collective bargaining agreement applicable to acquire by merging Business Employees;
(vii) enter into or consolidating with, amend or by purchasing a substantial portion of the stock or assets extend any material term of, or by waive any other mannermaterial claim or right under, or terminate any business Material Contract or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a wholelease for Leased Real Property, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practice;
(cviii) make any material change in any (i) method of accounting or accounting practice or policy used by the Transferred Companies, other than such changes as are required by the Transaction Accounting Principles or applicable Law or (ii) Privacy Policy or the security of any IT Systems in any manner that is materially adverse to the Business, except as required by applicable Law;
(ix) except as contemplated by the 2019 capital expenditure plan or 2020 capital expenditure plan of the Transferred Companies previously provided to Buyer, enter into any commitment for capital expenditures or acquisitions (by merger, acquisition or otherwise) of any assets, securities or businesses in excess of $1,000,000 for any individual commitment and $5,000,000 for all such commitments in the aggregate (other than acquisitions of raw materials, machinery, and equipment in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of the Purchased Assets, or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assetsbusiness);
(dx) as it relates fail to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially maintain their books and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken records in the ordinary course of business consistent with past practice;
(exi) incur, assume, modify or refinance any Debt (as defined in clauses (i) to (viii) in the definition thereof), except (A) to the extent that such Debt will be settled or otherwise eliminated prior to the Closing, (B) any Debt incurred by a Transferred Company to another Transferred Company that immediately prior to the Closing will be wholly beneficially owned by Aust Holdco, or (C) any Debt that is incurred in the ordinary course of business; provided that, with respect to clause (C), (i) Debt for borrowed money in excess of $10,000,000 in aggregate principal amount shall not be deemed to be in the ordinary course of business and (ii) any new or incremental guarantees (including bank guarantees of Liabilities or obligations of any Transferred Company) shall not be deemed to be in the ordinary course of business;
(xii) other than extensions of credit to customers in the ordinary course of business, make or guarantee any loans, advances, capital contributions to or investments in any Person (other than another Transferred Company that, as of Closing, will be wholly beneficially owned by Aust Holdco);
(xiii) (A) liquidate, dissolve, reorganize or wind up the business or operations of any Transferred Company or (B) discontinue any line of business or engage in any new line of business;
(xiv) enter into any settlement or release with respect to any material Action relating to the Transferred Companies or the Business (except relating to Taxes), unless such settlement or release contemplates only the payment of money (or the modification, termination or release of any rights or obligations of Parent or the Seller Parties) less than $1,500,000 individually or $3,000,000 in the aggregate and paid in their entirety prior to the Closing and without ongoing limits on the conduct or operation of the Transferred Companies or the Business;
(xv) enter into, amend, modify terminate or terminategrant any waiver under any Contract with any Seller Party or any of their respective Affiliates, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact other than entry into the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby Reorganization Documents or the Purchased Assetsapplicable Additional Agreements in accordance with this Agreement;
(fxvi) make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Return, surrender or waive any claim for a plan material Tax refund, settle or compromise any material Tax liability, agree to any extension or waiver of complete the statute of limitations with respect to the assessment or partial liquidation determination of Seller a material amount of Taxes, enter into any closing agreement with respect to any material amount of Tax, or enter into any Tax allocation agreement, Tax indemnity agreement or Tax sharing agreement, in each case, with respect to the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolutionTaxes of the Transferred Companies, other than as required by applicable Law;
(xvii) effect any merger, consolidation, restructuringrecapitalization, recapitalization reclassification or reorganization, unless such action would not reasonably be expected to materially and adversely impact other change in the ability capitalization of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsTransferred Companies;
(gxviii) settle or compromise any litigation related abandon, fail to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settlediligently maintain, pay or compromise any claims not required to be paidtransfer, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(i) make any changes sell, encumber, exclusively license, place in the existing distribution channels public domain or otherwise dispose of the Businessany right, except as would be consistent with past practice title or interest in all or to any Owned Intellectual Property or Licensed Intellectual Property, other than non-material respects actions or as would not materially and adversely impact the Purchased Assets;
(j) except transactions in the ordinary course of business or consistent with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assetspast practice;
(kxix) intentionally take declare, set aside or pay any action that would reasonably be likely non-cash dividend or non-cash distribution to have a Material Adverse Effect on any Person;
(xx) enter into, terminate or modify any Hedge Contracts, other than in the Business or the Purchased Assetsordinary course of business consistent with past practice; or
(lxxi) authorize enter into any of or commit legally binding commitment with respect to take any of the foregoing actionsforegoing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Campbell Soup Co)
Conduct Prior to the Closing. Except as required by applicable Law or as otherwise contemplated by or necessary to effectuate the Merger or to perform the Transaction Agreements and except for matters identified in Section 6.01 of the Disclosure Schedule, from the date of this Agreement or with through the prior written Closing, unless the Acquiror otherwise consents in writing in advance (such consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to until the Closing, Parent shall or, if earlier, the termination of this Agreement in accordance with its terms, RAI will, and will cause Seller and its Affiliates the RAI Asset Owners to, and Seller and will use its Affiliates will conduct reasonable best efforts to cause the Business according Lorillard Asset Owners to: (A) operate the business related to the Seller’s RAI Brands and its Affiliates’ the PR Business and the blu Brand Business in the ordinary and usual course of business consistent with past practice and will in all material respects; (B) use reasonable best efforts consistent therewith to preserve intact the value of material business relationships and goodwill associated with the Purchased AssetsAcquired Brands, the blu Brand Business and the PR Business with the material customers, material suppliers, material distributors, material agents, material retailers and others with whom the RAI Asset Owners or Lorillard Asset Owners have business relationships with respect to the business related to the Acquired Brands and the blu Brand Business or the PR Business, as applicable; (C) use reasonable best efforts to continue distribution practices substantially in accordance with past practice; and (D) use reasonable best efforts to keep available the services of the Seller’s and its Affiliates’ executive officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case Key Lorillard Employees who are Proposed Transferred Employees in the ordinary course of businessconsistent with past practice. In addition, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without without limiting the generality of the foregoing, and except as otherwise specifically provided for matters identified in this Agreement, neither Seller nor its Affiliates will take any Section 6.01 of the following actionsDisclosure Schedule, prior to unless the Closing, without the prior written Acquiror otherwise consents in writing in advance (such consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):), from the date of this Agreement until the Closing, or, if earlier, the termination of this Agreement in accordance with its terms, RAI will not and will cause the other Sellers not to:
(a) amend grant any Lien (other than granting or suffering to exist a Permitted Lien) on any material Transferred Assets (whether tangible or intangible) that will not be extinguished, as to the certificate of organizationTransferred Assets, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion at the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsClosing;
(b) acquire or agree to acquire (by merging or consolidating withmerger, or by purchasing a substantial portion consolidation, acquisition of the stock or assets of, or by otherwise) any other manner, any business or corporation, partnership, joint venture, association partnership or other business organization or division thereof; or any assets that are material, individually or would constitute Transferred Assets in excess of $35,000,000 in the aggregate;
(c) incur or suffer to exist any Indebtedness (including intercompany Indebtedness) that would encumber any Transferred Asset, to Seller and or otherwise issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the International Subsidiary, taken as a wholeobligations of any Person, except for any Indebtedness, debt securities or obligations for which RAI or its Affiliates shall be solely obligated and that shall be Excluded Liabilities or that will be extinguished on or prior to the Closing;
(d) other than in the ordinary course of business consistent with past practice, waive any claims or rights of material value to the Acquired Brands, the PR Business or the blu Brand Business (to the extent such claims or rights would constitute Transferred Assets);
(e) sell, pledge, assign, transfer, lease, sublease, license or otherwise dispose of any Transferred Assets, other than (i) transactions that would not reasonably be expected to materially Intellectual Property, Inventory and adversely impact obsolete or excess Equipment in the ability ordinary course of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets business consistent with past practice or (ii) purchases pursuant to existing Assumed Contracts or commitments or pursuant to Assumed Contracts entered into after the date of this Agreement without violating the terms of this Agreement;
(f) with respect to (i) the blu Brand Business, (A) undertake or commit to undertake any capital expenditure in any 12-month period (to the extent such capital expenditure would constitute an Assumed Liability) in excess of $10,000,000 in the aggregate for all such capital expenditures that are not contemplated by the capital plans set forth in Section 6.01(f)(1) of the Disclosure Schedule or (B) fail to make any capital expenditure contemplated by the capital plans set forth in Section 6.01(f)(1) of the Disclosure Schedule, except to the extent such failure would not materially affect the capital plan or cause a timing delay of more than a quarter or (ii) the PR Business, (A) undertake or commit to undertake any capital expenditure in any 12-month period (to the extent such capital expenditure would constitute an Assumed Liability) in excess of $20,000 in the aggregate for all such capital expenditures that are not contemplated by the capital plans set forth in Section 6.01(f)(2) of the Disclosure Schedule or (B) fail to make any material capital expenditure contemplated by the capital plans set forth in Section 6.01(f)(2) of the Disclosure Schedule;
(g) solely with respect to Proposed Transferred Employees, other than to the extent required by any existing Employee Plan or expressly contemplated or permitted by the terms of this Agreement or the Merger Agreement, (i) grant or announce any increase in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable, other than in the ordinary course of business consistent with past practice, (ii) establish, adopt, amend or become a party to any new employee benefit or compensation plan, program, commitment, agreement or arrangement or collective bargaining agreement or other trade union agreement or amend any existing Employee Plan (including any employment agreement) in a manner that affects compensation or benefits payable, other than immaterial amendments, renewals and other changes in the ordinary course of business consistent with past practice, (iii) increase or promise to increase any benefits under any Employee Plan, other than in the ordinary course of business consistent with past practice, (iv) accelerate any vesting of compensation or benefits or pay any material compensation or benefits not otherwise due, (v) grant any rights to severance or termination pay to, or enter into any employment, consulting or severance agreement, other than in the ordinary course of business consistent with past practice, or (vi) with respect to any Employee Plan that is assumed as provided in Exhibit D, modify the actuarial assumptions used for determining benefits thereunder or fund any trusts related thereto, except, in each case, as required by Law (including, without limitation, Lorillard’s obligation to engage in good faith bargaining);
(h) other than in the ordinary course, make any changes in any material respects to the working capital policies of the blu Brand Business or the PR Business or the inventory maintenance policies applicable to the Inventory;
(i) enter into any transactions or Contracts with Affiliates that would be Assumed Contracts or otherwise binding on the Transferred Assets after the Closing, other than in the ordinary course of business consistent with past practice;
(ci) except other than in the ordinary course of business consistent with past practice, (i) sellterminate, leasemodify or amend, licenserelease, transfer enter into, extend or otherwise dispose waive any material right under, or discharge any other party thereto of any of the Purchased Assetstheir material obligations under, any lease in respect of Transferred Leased Property; or (ii) mortgage, encumber or subject to any Encumbrance any of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary only, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoingContract that materially restrains, except for borrowings materially restricts or other such actions materially limits (iA) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate sell, distribute or market any Acquired Tobacco Cigarette Brand or (B) the transactions contemplated hereby blu Brand Business or the Purchased Assets PR Business from competing with or conducting any business or line of business in any geographic area, in each case other than exclusive distribution, agency or supply arrangements (iinot with Affiliates) incurred or taken entered into in the ordinary course of business consistent with past practice;
(ek) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected fail to materially and adversely impact comply with any Law applicable to the ability operation or conduct of the Seller and its Affiliates to consummate the transactions contemplated hereby blu Brand Business or the Purchased AssetsPR Business;
(fl) adopt a plan take any action that is reasonably likely to result in the termination, suspension, material modification, revocation or nonrenewal of complete any Permits that are material to the blu Brand Business or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsPR Business;
(gm) settle or compromise enter into any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced new Contract that, if entered into prior to the date of this Agreement) Agreement would be an Assumed Contract, or settleterminate, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend materially amend, release, enter into, extend, waive any existing insurance policy with respect to the Purchased Assets;
material right under, assign or otherwise change any material rights under, or discharge any other party thereunder of any of their material obligations under any Assumed Contract, except in each case (i) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business consistent with past practice or (ii) consistent with subsections (g) and (n);
(n) agree to any modification of payments or obligations under any State Settlement or agreement related to any State Settlement or in relation to the DoJ Tobacco Case, including agreements with States, other OPMs or SPMs, that by its terms applies to the Acquired Tobacco Cigarette Brands (or any of them) differently than it does to other tobacco cigarette brands owned by RAI or Lorillard, or take or fail to take any action under any State Settlement that could affect the Acquiror’s payment or other obligations after the Closing or waive any credit or right under any State Settlement to which the Acquiror would be entitled after the Closing;
(o) take any action (including any action with respect to capital projects approved prior the FDA, any State or NAAG) that is reasonably likely to result in the date hereoftermination, enter into any Contract related to suspension, material modification, revocation or nonrenewal of the Business brand registrations, licenses or Certification/Listing of the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased AssetsAcquired Tobacco Cigarette Brands;
(kp) intentionally take any action that would is reasonably be likely to have result in a Material Adverse Effect on material adverse change in any obligations under the Business or Final Judgment and Remedial Order in respect of the Purchased AssetsAcquired Tobacco Cigarette Brands; or
(lq) authorize or enter into any of transaction, agreement, commitment, undertaking or commit arrangement with respect to take any of the foregoing actionsforegoing. Nothing in this Section 6.01 shall be deemed to limit any transfer of Excluded Assets prior to the Closing. Nothing in this Section 6.01 is intended to, or should be interpreted to, limit Lorillard’s ability to engage in any legally required good faith bargaining with the unions representing Lorillard employees. Nothing in this Section 6.01 or in the remainder of this Agreement shall give the Acquiror, directly or indirectly, the right to control or direct the operations of RAI or Lorillard or any of their respective Affiliates with respect to the Transferred Assets prior to the Closing. Nothing in this Section 6.01 will restrict RAI or Lorillard or any of their respective Affiliates from taking any action required to be taken by it or from exercising any right permitted under Section 5.02, Section 5.03 or, subject to the proviso to Section 6.16(b) hereof, Section 6.03 of the Merger Agreement.
Appears in 1 contract
Conduct Prior to the Closing. Except as contemplated by this Agreement or with the prior written consent of (a) Unless Buyer consents in writing (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period except as required by applicable Law or expressly required by this Agreement, from and after the date of this Agreement until the earlier of: (i) the Closing Date, and (ii) the termination of this Agreement pursuant to Section 11.1 (the Closing“Pre-Closing Period”), Parent Seller shall, and shall cause Seller and its Affiliates engaged in the research, development or manufacture of the Compound or any Product to, and Seller and its Affiliates will use commercially reasonable efforts to conduct such activities only in the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of Acquired Assets and the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material existing business relationships related to the Assigned Contracts and the licensing of the Purchased Assets, in each case in the ordinary course of business, provided that it is understood that Parent may take such actions in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected related to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby research, development or the Purchased Assets or Buyer’s ability to exploit any or all manufacture of the Purchased Assets following the Closing. Compound or any Product.
(b) Without limiting the generality of the foregoingSection 7.1(a), and except as otherwise specifically provided unless Buyer consents in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer writing (which consent shall not be unreasonably withheld, conditioned delayed or delayed):conditioned), except as required by applicable Law or expressly required by this Agreement or as set forth in Section 7.1(b) of the Seller Disclosure Letter, during the Pre-Closing Period, Seller shall not take any of the following actions:
(ai) amend [***], transfer, sell, lease, enter into any sale lease back (or similar arrangement), license, mortgage, pledge, encumber or otherwise convey or dispose of or grant any rights in, or create any Liens (other than Permitted Liens) on, the certificate Compound, any Product or any of organizationthe Acquired Assets, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion than the structure or ownership grant of Seller or non-exclusive licenses to rights to the International Subsidiary, if Compound for the sole purpose of continuing the TATCIST Study that are restricted to such amendment or alteration would reasonably be expected to materially use and adversely impact the ability use of Seller or its Affiliates to consummate inventory of the transactions contemplated hereby or Compound for purposes of the Purchased AssetsTATCIST Study;
(bii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion enter into any Contract in respect of the stock research, development, manufacture or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; commercialization of the Compound or any assets Product other than Contracts reasonably necessary or appropriate to continue the TATCIST Study and that are material, individually otherwise comply with the restrictions set forth in this Section 7.1(b) or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except (i) transactions that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in the ordinary course of business consistent with past practiceSection 7.4;
(ciii) except discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to, any Claim that (A) results by its terms in any express restriction on the ordinary course research, development, manufacture or commercialization of business consistent the Compound or any Product or (B) results in a Liability to the extent that such Liability would constitute an Assumed Liability;
(iv) vary any inventory practices with respect to the Compound or any Product in any respect materially inconsistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any of except to the Purchased Assets, or (ii) mortgage, encumber or subject extent necessary to any Encumbrance any of conduct the Purchased AssetsTATCIST Study;
(dv) as it relates to Seller or International Subsidiary only[***], incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganizationother reorganization affecting the Acquired Assets, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby Compound or the Purchased Assetsany Product;
(gvi) settle disclose to any Third Party any trade secrets or compromise other confidential information included in the Acquired Assets other than pursuant to a confidentiality agreement on customary terms;
(vii) correspond, communicate or consult with the FDA, EMA or similar Regulatory Authorities concerning the Compound or any litigation related Product without providing Buyer prior written notice and the opportunity to consult with Seller with respect to such correspondence, communication or consultation, to the Purchased Assets in which Seller or one of its Affiliates extent such written notice and consultation is a defendant (whether or not commenced prohibited by such Regulatory Authorities; provided, that prior to the date of this AgreementClosing Date, Seller shall retain all final decision-making authority with respect to such correspondence, communications and consultation;
(viii) except as requested by the FDA, EMA or settlesimilar Regulatory Authorities or in connection with a Study Termination Event, pay or compromise make any claims not required material modification to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby TATCIST Study or the Purchased Assetsstudy protocol for the TATCIST Study;
(ix) commence, or submit any application for a Governmental Authorization with respect to the commencement of, any clinical study of the Compound or any Product;
(x) make any filing with any Governmental Authority to obtain Patent Rights or register any trademark, service mark, trade name or similar indicia of ownership with respect to the Compound or any Product or the making, use or sale thereof; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;
(ixi) make any changes in the existing distribution channels of the Business, except as would be consistent with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or a binding commitment exceeding $100,000, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actions.
(c) Nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct Seller’s or any of its Affiliates’ operations prior to the Closing. Prior to the Closing, the management of Seller shall exercise, consistent with and in accordance with the terms and conditions of this Agreement, complete control and supervision over the operations of Seller and its Affiliates.
(d) Immediately prior to the Closing, Seller shall cause any of its Affiliates holding any asset(s) that constitute Acquired Asset(s) to transfer and assign such asset(s) to Seller. Seller or its applicable Affiliates shall be solely responsible for, and shall pay, all costs and expenses, including all Taxes, resulting from such transfers.
Appears in 1 contract
Samples: Option and Asset Purchase Agreement (Fusion Pharmaceuticals Inc.)
Conduct Prior to the Closing. Except From occurrence of an Unwind Trigger Event until Closing, except as directly relates to the CON Challenges, Unwind Trigger Event, Unwind Notice or matters resulting therefrom or the effect of any shutdown, closure or suspension of operations pursuant to Section 5.16, or otherwise consented to or approved in writing by an authorized officer of Purchaser or as contemplated by this Agreement Agreement:
(a) LifePoint shall not act or omit to act, and shall cause the Acquired Entities not to act or omit to act, otherwise than in accordance with the prior written consent following:
(i) None of Buyer the Acquired Entities shall amend its respective Constituent Documents;
(which consent ii) No change shall be made in the number or amount of authorized or issued capital stock, partnership interests or membership interests of any of the Acquired Entities; nor shall any other equity security of any kind be granted or issued by any of the Acquired Entities; nor shall any Seller enter into or permit any of the Acquired Entities to enter into any other agreement with respect to any equity security of the Acquired Entities;
(iii) The Acquired Entities shall not declare or pay dividends or make any other distributions in respect of their Ownership Interests, except as contemplated by or provided in Section 5.7;
(iv) LifePoint will not make or enter into any commitment to make any capital expenditure at the Facilities or otherwise on behalf of any Acquired Entity in an aggregate amount greater than $50,000;
(v) LifePoint will not change or permit any change to be unreasonably withheldmade in any accounting policy, conditioned practice or delayed)method of the Acquired Entities except any such changes as are required to conform to modifications in generally accepted accounting principles;
(vi) The Acquired Entities will not (A) incur any indebtedness for borrowed money, during other than intercompany indebtedness which will be forgiven at Closing in accordance with Section 5.11 hereof or included in the period from Indebtedness Adjustment Amount; (B) assume, guaranty, endorse or otherwise become liable or responsible for the date obligations of this Agreement any Person other than another Acquired Entity; (C) make any loans, advances or capital contributions to, or investments in, any Person other than another acquired Entity, other than intercompany loans which will be forgiven at Closing in accordance with Section 5.11 hereof; or (D) make any commitments to do any of the foregoing;
(vii) The insurance maintained with respect to the Closing, Parent shall cause Seller and its Affiliates to, and Seller and its Affiliates will conduct the Business according to the Seller’s and its Affiliates’ ordinary and usual course of business consistent with past practice and will use reasonable efforts consistent therewith to preserve intact the value of the Purchased Assets, to keep available the services of the Seller’s and its Affiliates’ officers and employees necessary to provide the services under the Transitional Services and License Agreement, and to maintain satisfactory relationships with customers and counterparties to the Assigned Contracts, suppliers, distributors and other Persons having material business relationships related to the Assigned Contracts Facilities and the licensing of Business, or comparable insurance, shall be maintained in full force and effect until the Purchased AssetsEffective Time;
(viii) No Acquired Entity shall terminate or amend any material Contract, in each case Lease or other agreement to which any Acquired Entity is a party, other than in the ordinary course of business; and
(ix) No Acquired Entity shall agree, provided that it is understood that Parent may take such actions whether in connection with winding down the operations of Seller and its Affiliates as it deems reasonably necessary so long as such actions would not reasonably be expected writing or otherwise, to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or Buyer’s ability to exploit any or all of the Purchased Assets following the Closing. Without limiting the generality of the foregoing, and except as otherwise specifically provided in this Agreement, neither Seller nor its Affiliates will take any of the following actions, prior to the Closing, without the prior written consent of Buyer (which consent shall actions set forth above and not be unreasonably withheld, conditioned or delayed):
(a) amend the certificate of organization, operating agreement or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the structure or ownership of Seller or the International Subsidiary, if such amendment or alteration would reasonably be expected to materially and adversely impact the ability of Seller or its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;otherwise permitted by this Agreement.
(b) acquire LifePoint shall use commercially reasonable efforts not to act or agree omit to acquire by merging act, and shall cause the Acquired Entities to use commercially reasonable efforts not to act or consolidating withomit to act, or by purchasing a substantial portion of otherwise than in accordance with the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to Seller and the International Subsidiary, taken as a whole, except following:
(i) transactions that would not reasonably be expected to materially The operations, activities and adversely impact the ability practices of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) purchases in Business shall be conducted consistent with the ordinary course of business consistent and in conformity with past practice;
(cii) except in the ordinary course of The respective business consistent with past practice, (i) sell, lease, license, transfer or otherwise dispose of any organizations of the Purchased AssetsAcquired Entities will be preserved intact, or (ii) mortgage, encumber or subject to any Encumbrance any and the services of the Purchased Assets;
(d) as it relates to Seller or International Subsidiary onlypresent employees, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Seller or the International Subsidiary, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any agents and representatives of the foregoing, Business will be kept available for Purchaser (except for borrowings or other such actions (i) that would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets or (ii) incurred or taken in the ordinary course of business consistent with past practice;
(e) enter into, amend, modify or terminate, any Assigned Contracts, except for (i) Contracts with those customers and upon those terms listed on Schedule 5.1(e), and (ii) Contracts that would not reasonably be expected to materially and adversely impact the ability of the Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(f) adopt a plan of complete or partial liquidation of Seller or the International Subsidiary or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization, unless such action would not reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(g) settle or compromise any litigation related to the Purchased Assets in which Seller or one of its Affiliates is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, in any such case if doing so would reasonably be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets; or
(h) modify or amend any existing insurance policy with respect to the Purchased Assets;those employees or relationships terminated for cause); and
(iiii) make any changes in The relationships with, and the existing distribution channels goodwill of, the customers of the Business, except as would be consistent Business and others having business relations with past practice in all material respects or as would not materially and adversely impact the Purchased Assets;
(j) except in the ordinary course of business or with respect to capital projects approved prior to the date hereof, enter into any Contract related to the Business or the Purchased Assets involving an aggregate capital expenditure or commitment exceeding $100,000, unless such action would not reasonably will be expected to materially and adversely impact the ability of Seller and its Affiliates to consummate the transactions contemplated hereby or the Purchased Assets;
(k) intentionally take any action that would reasonably be likely to have a Material Adverse Effect on the Business or the Purchased Assets; or
(l) authorize any of or commit to take any of the foregoing actionspreserved.
Appears in 1 contract
