Covenants of Seller Relating to Conduct of Business. (a) Except for matters set forth in Schedule 5.01 or otherwise expressly permitted by the terms of this Agreement, from the date of this Agreement to the Closing, Seller shall conduct the Business in the usual, regular and ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use its best efforts to keep intact the Purchased Operating Business, keep available the services of the current employees of the Purchased Operating Business and preserve the relationships of the Business with customers, suppliers, licensors, licensees, distributors and others with whom the Purchased Operating Business deals to the end that the Purchased Operating Business shall be unimpaired at the Closing. Prior to the Closing, Seller shall not take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Acquired Assets set forth in Article VI not being satisfied. Seller shall also confer with Purchaser concerning operational matters of a material nature to the extent permitted by Applicable Laws and shall report periodically to Purchaser concerning the status of the Business. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 5.01 or otherwise expressly permitted or required by the terms of this Agreement, Seller shall not do any of the following in connection with the Purchased Operating Business without the prior written consent of Purchaser: (i) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Applicable Law; (ii) grant to any executive officer or employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated, or select any executive officer or employee for benefits under the Vista Chemical Company Discretionary Termination Plan except as may be required under such plan; (iii) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business and consistent with past practice; PROVIDED, HOWEVER, that in no event shall the Business incur or assume any long-term indebtedness for borrowed money; (iv) permit, allow or suffer any Acquired Asset to become subjected to any Lien of any nature whatsoever that would have been required to be set forth in Schedule 3.05 or 3.06 if existing on the date of this Agreement; (v) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value; (vi) except for intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with, Seller or any of its affiliates; (vii) make any change in any method of accounting or accounting practice or policy other than those required by international accounting standards; (viii) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than in the ordinary course of business) that are material, individually or in the aggregate, to the Purchased Operating Business; (ix) make or incur any capital expenditure that, individually or in the aggregate, exceeds the capital expenditure budget provided to Purchaser by more than $500,000; (x) sell, lease, license or otherwise dispose of any of its assets that are material, individually or in the aggregate, to the Business, except (A) inventory and obsolete or excess equipment sold in the ordinary course of business and consistent with past practice and (B) any Excluded Asset identified in Schedule 1.02(b); (xi) enter into any lease of real property, except any renewals of existing leases in the ordinary course of business; or (xii) authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of, the foregoing actions.
Appears in 1 contract
Covenants of Seller Relating to Conduct of Business. (a) Except for matters set forth in Schedule 5.01 or otherwise expressly permitted by the terms of this Agreement, from the date of this Agreement to the Closing, Closing Seller shall conduct the Business in the usual, regular and ordinary course in substantially the same manner as previously conducted (including with respect to research and development efforts, advertising, promotions, capital expenditures and inventory levels) and, to the extent consistent therewith, use its best all reasonable efforts to keep intact the Purchased Operating Business, keep available the services of the current employees of the Purchased Operating Business and preserve the relationships of the Business with customers, suppliers, licensors, licensees, distributors and others with whom the Purchased Operating Business deals to the end that the Purchased Operating Business shall be unimpaired at the Closingdeals. Prior to the Closing, Seller Seller~~ shall not take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Acquired Assets and Business Property set forth in Article VI not being satisfied. Seller shall also confer with Purchaser concerning operational matters of a material nature to the extent permitted by Applicable Laws and shall report periodically to Purchaser concerning the status of the Business. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 5.01 or otherwise expressly permitted or required by the terms of this Agreement, Seller shall not do any of the following in connection with the Purchased Operating Business without the prior written consent of PurchaserBuyer:
(i) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) ), including the Retention Agreements set forth in Schedule 3.14, or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Applicable Lawlaw;
(ii) grant to any executive officer or employee of the Business any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for to which Seller shall be solely obligated, or select any executive officer or employee for benefits under the Vista Chemical Company Discretionary Termination Plan except as may be required under such planBuyer agrees;
(iii) incur or assume grant any liabilities, obligations or indebtedness for borrowed money or guarantee new stock options to any such liabilities, obligations or indebtednessEmployees, other than in the ordinary course of business and consistent with past practice; PROVIDED, HOWEVER, that in no event shall the Business incur or assume any long-term indebtedness for borrowed moneythose stock options listed on Schedule 3.17(b);
(iv) hire any new employees, contract employees or consultants (or renew any contracts associated with any existing Employees, contract employees or consultants) or make any changes to job titles or human resources policies affecting the existing Employees, contract employees or consultants;
(v) permit, allow or suffer any Acquired Asset or the Business Property to become subjected to any Lien of any nature whatsoever that would have been required to be set forth in Schedule 3.05 or 3.06 if existing on the date of this Agreement;
(v) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(vi) except for intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with, Seller or any of its affiliates;
(vii) make any change in any method of accounting or accounting practice or policy other than those required by international accounting standards;
(viii) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than in the ordinary course of business) that are material, individually or in the aggregate, to the Purchased Operating Business;
(ix) make or incur any capital expenditure that, individually or in the aggregate, exceeds the capital expenditure budget provided to Purchaser by more than $500,000;
(x) sell, lease, license or otherwise dispose of any of its assets that are material, individually or in the aggregate, to the Business, except (A) inventory and obsolete or excess equipment sold in the ordinary course of business and consistent with past practice and (B) any Excluded Asset identified in Schedule 1.02(b);
(xi) enter into any lease of real property, except any renewals of existing leases in the ordinary course of business; or
(xii) authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of, the foregoing actions.,
Appears in 1 contract
Samples: Asset Purchase Agreement (Mercury Computer Systems Inc)
Covenants of Seller Relating to Conduct of Business. (a) Except for matters set forth in Schedule 5.01 or as otherwise expressly permitted permitted, required or prohibited (other than pursuant to any ability to Cure (as defined in Section 6.05)) by the terms of this Agreement, from the date of this Agreement to the ClosingClosing Seller shall, and shall cause each member of the Seller shall Group to, conduct the Business in the usual, regular and ordinary course in substantially the same manner as previously conducted and(including with respect to work-force reductions, to the extent consistent therewithcollections of accounts receivable, payments of accounts payable, research and development efforts, sales practices (including promotions, discounts, concessions and payment terms), legal defense efforts and legal expenditures, maintenance and repair expenditures, product quality and product specifications, capital expenditures, environmental expenditures and inventory levels) and use its best all commercially reasonable efforts to keep intact the Purchased Operating Business, keep available the services of the current employees of the Purchased Operating Business and preserve the relationships of the Business with material customers, suppliers, licensors, licensees, distributors and others with whom the Purchased Operating Business deals to the end that the Purchased Operating Business shall be unimpaired at the Closing. Prior to the Closing, Seller shall not take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Acquired Assets set forth in Article VI not being satisfied. Seller shall also confer with Purchaser concerning operational matters of a material nature to the extent permitted by Applicable Laws and shall report periodically to Purchaser concerning the status of the Businessdeals. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 5.01 or otherwise expressly permitted or required by the terms of this AgreementAgreement (other than pursuant to any ability to Cure (as defined in Section 6.05)), Seller shall not, and shall not permit any other member of the Seller Group to, do any of the following in connection with the Purchased Operating Business (except any action relating solely to Excluded Assets (other than the Acquired Coating Equipment) or Excluded Liabilities that could not reasonably be expected to have any affect on any Acquired Asset or Assumed Liability or Acquired Coating Equipment, on the conduct of the Business (other than operation of the Brainerd Facility) by Purchaser following the Closing or on the ability of Seller to perform its obligations (without giving effect to any ability to Cure) under this Agreement and the Ancillary Agreements) without the prior written consent of Purchaser:
(i) (A) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Applicable Law;
(ii) grant to any executive officer officer, director, employee or employee independent contractor any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated, or select any executive officer or employee for benefits under the Vista Chemical Company Discretionary Termination Plan except as may be required under such plan;
(iii) terminate the employment of any of the personnel of the Seller Group who principally works for or provides services to the Business; provided that the consent of Purchaser to any such action shall not be -------- unreasonably withheld or delayed;
(iv) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtednessindebtedness or otherwise take any action to incur or assume, or fail to take any action required by any obligation or duty that results in the incurrence of, any other material liabilities or obligations of any nature, other than in the ordinary course of business and consistent with past practicepractice or which will be an Excluded Liability; PROVIDEDprovided, HOWEVERhowever, that in -------- ------- no event shall the Business incur incur, assume or assume guarantee any long-term indebtedness for borrowed money;
(ivv) permit, allow or suffer any Acquired Asset or Acquired Coating Equipment to become subjected to any Lien of any nature whatsoever that would have been required to be set forth in Schedule 3.05 or 3.06 if existing on the date of this Agreement;
(vvi) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(vivii) except for intercompany transactions dividends and distributions in cash to a member of the ordinary course of businessSeller Group or as required by the Affiliate Contracts, pay, loan or advance any amount to, or sell, transfer or lease any of its assets that would be Acquired Assets to, or enter into or amend or otherwise modify any agreement (including any Affiliate Contract) or arrangement with, Seller or any of its affiliates;
(viiviii) make any change in any method of accounting or accounting practice or policy other than those required by international accounting standardsGAAP;
(viiiix) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than in the ordinary course of businessinventory) that are material, individually or in the aggregate, to the Purchased Operating Business;
(ix) make or incur any capital expenditure that, individually or in the aggregate, exceeds the capital expenditure budget provided to Purchaser by more than $500,000Business and that would be Acquired Assets;
(x) sell, lease, license or otherwise dispose of any of its assets that are materialwould be Acquired Assets, individually or except inventory of finished goods sold, "broke" disposed of and other consumable assets used, in each case, in the aggregateordinary course of business and consistent with past practice;
(xi) acquire fee title to, to the Businessor an ownership interest in, any real property that would be an Acquired Asset or enter into any lease (or renewal of any lease) of real property that would be an Acquired Asset, except (A) inventory and obsolete or excess equipment sold any renewals of existing leases in the ordinary course of business and consistent with past practice (including in respect of term), with respect to which Purchaser shall have the right to participate and (B) any Excluded Asset identified to cure or remove imperfections in Schedule 1.02(b)title;
(xixii) enter into modify, amend, terminate or permit the lapse (other than lapses of leases of sales offices in accordance with the terms thereof) of any lease of of, or reciprocal easement agreement, operating agreement or other material agreement relating to, real property, property that would be an Acquired Asset (except any modifications or amendments associated with renewals of existing leases in the ordinary course of business; orbusiness and consistent with past practice with respect to which Purchaser shall have the right to participate);
(xiixiii) authorize enter into any transaction (including any employment agreement or contract but excluding the payment of wages and provision of benefits in accordance with existing Contracts and ordinary travel advances) with any current or former shareholder with beneficial ownership of at least 100,000 shares of the common stock of Seller, officer, director or employee of Seller or any affiliate of Seller (or member of their families or trusts for their benefit);
(xiv) enter into or amend any covenant not to compete, or enter into or amend any other covenant restricting the development, manufacture, marketing or distribution of the products and services of the Business;
(xv) with respect to any Acquired Entity, declare or pay a dividend or make a distribution or redeem or otherwise acquire any of its equity or other interests or any other security;
(xvi) with respect to any Acquired Entity, issue, deliver, sell, or dispose of, or commit authorize or propose the issuance, sale or disposition of, any equity or other interests or any other security or any option, warrant or right relating thereto, or any securities convertible into or exchangeable for any equity or other interests or any other security;
(xvii) make any purchase commitment for the Business in excess of the normal, ordinary and usual requirements or at any price in excess of the then current market price or for a period of greater than 90 days;
(xviii) enter into or amend in any material respect any continuing agreement or Contract for the distribution of any products manufactured by the Business (unless such agreement or Contract will be terminable by Purchaser following Closing without payment or penalty upon no more than 60 days' notice and any terms relating to exclusivity will be terminable by Purchaser immediately following Closing and at all times thereafter without prior notice, payment or penalty); provided that the consent of Purchaser -------- to any such agreement or amendment shall not be unreasonably withheld or delayed;
(xix) enter into or amend any continuing agreement or Contract for the so-called "toll manufacture" of products by the Business on behalf of parties other than any member of the Seller Group;
(xx) enter into or amend any Contract that would be an Assigned Contract for the placement of advertising or other promotional activities, in any such case which has an aggregate future liability in excess of $50,000 or which, together with all other such agreements, contracts or arrangements, has an aggregate future liability in excess of $500,000;
(xxi) institute, settle or agree to takesettle any litigation, whether action or proceeding before any court or governmental body or waive or surrender any rights related to any pending or threatened litigation, action or proceeding except for any settlement, waiver or surrender that could not impair the use of any Acquired Asset or the operation or conduct of the Business; provided that the consent of Purchaser to any such action shall -------- not be unreasonably withheld or delayed;
(xxii) enter into any license, option or other material agreement relating or pertaining to Assigned Intellectual Property or Assigned Technology that would constitute Acquired Assets or to the Intellectual Property or Technology of any third party except in writing respect of so-called "embedded technology" relating to equipment purchased from third party manufacturers or otherwisefor so called "shrink-wrap" license agreements relating to computer software licensed in the ordinary course of business;
(xxiii) enter into or amend any trackage rights, to do haulage rights, marketing agreements, joint facility agreements or other agreements affecting the operation of the Railroad;
(xxiv) abandon any part of the rail lines of the Railroad;
(xxv) take any action that limits or precludes Purchaser from (A) rejecting any Labor Contract or (B) setting any initial term or condition of employment for any Continued Employees;
(xxvi) enter into any lease, sublease or similar Contract with any person under which (A) any member of the Seller Group is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person in connection with the foregoing actions.Business or (B) any member of the Seller Group is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by any member of the Seller Group that would be an Acquired Asset, in any such case that has an aggregate future liability or receivable, as the case may be, in excess of $100,000 or is not terminable by such member of the Seller Group by notice of not more than 60 days for a cost of less than $50,000;
(xxvii) enter into any (A) continuing Contract that would be an Assigned Contract (other than a purchase order) for the future purchase of materials, supplies or equipment that has an aggregate future liability in excess of $100,000 or (B) management, service, consulting or other similar Contract that has an aggregate future liability in excess of $50,000;
(xxviii) enter into any Contract under which any member of the Seller Group has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than any member of the Seller Group) other than extensions of trade credit in the ordinary course of business and advances made in the ordinary course of business to employees of the Seller Group of the Seller Group for travel expenses;
(xxix) enter into any Contract that would be an Assigned Contract providing for indemnification of any person with respect to liabilities relating to any current or former business of any member of the Seller Group or any predecessor person;
(xxx) enter into any power of attorney (other than a power of attorney given in the ordinary course of business with respect to routine tax matters) that would be binding on Purchaser or with respect to any Acquired Asset or Assumed Liability after the Closing;
(xxxi) enter into any confidentiality agreement that would be an Assigned Contract (other than a confidentiality agreement entered into in the ordinary course of business and not with any person who (together with its affiliates) competes in any manner with the Business);
(xxxii) enter into any sales order (other than one-time sales orders entered into in the ordinary course of business that (A) except to the extent the buyer has asserted terms and conditions that have not been expressly agreed to by any member of the Seller Group, are subject to the Business' standard terms and conditions and (B) do not extend for a term more than 120 days from the date of this Agreement (unless terminable without payment or penalty upon no more than 60 days' notice));
(xxxiii) enter into any Contract (A) for the sale of any Acquired Asset (other than inventory sales in the ordinary course of business) or Acquired Coating Equipment, (B) for the grant of any preferential rights to purchase any Acquired Asset (other than inventory in the ordinary course of business) or Acquired Coating Equipment or (C) requiring the consent of any party to the transfer of any Acquired Asset or Acquired Coating Equipment and involving the payment by any party of at least $50,000 or affecting the use of an asset or assets with an aggregate original cost, replacement cost or fair market value of at least $50,000 or which are otherwise material to the Business;
(xxxiv) enter into any Contract with any Governmental Entity or any Contract with any person that would impose affirmative action obligations on Purchaser if assigned to Purchaser;
(xxxv) enter into any currency exchange, interest rate exchange, commodity exchange or similar Contract that would be an Assigned Contract;
(xxxvi) enter into any other Contract that would be an Assigned Contract or would affect any Acquired Asset or Acquired Coating Equipment and is for any joint venture, partnership or similar arrangement;
(xxxvii) enter into any other Contract that would be an Assigned Contract (other than a purchase order or a sales order) that has an aggregate future liability to any person in excess of $100,000 or extends for a term more than one year from the date of this Agreement (unless terminable without payment or penalty upon no more than 60 days' notice);
(xxxviii) enter into any Contract under which (A) any person has the right to use all or any assets (including track, yards and other facilities) of the Railroad, or (B) granting any member of the Seller Group the right to use all or any portion of any rail line, rail yards, or other rail facilities of any other person;
(xxxix) enter into any trackage rights, haulage, interchange, joint facility switching and similar Contracts; or
Appears in 1 contract
Covenants of Seller Relating to Conduct of Business. (a) Except for matters set forth in Schedule 5.01 or as otherwise expressly permitted permitted, required or prohibited (other than pursuant to any ability to Cure (as defined in Section 6.05)) by the terms of this Agreement, from the date of this Agreement to the ClosingClosing Seller shall, and shall cause each member of the Seller shall Group to, conduct the Business in the usual, regular and ordinary course in substantially the same manner as previously conducted and(including with respect to work-force reductions, to the extent consistent therewithcollections of accounts receivable, payments of accounts payable, research and development efforts, sales practices (including promotions, discounts, concessions and payment terms), legal defense efforts and legal expenditures, maintenance and repair expenditures, product quality and product specifications, capital expenditures, environmental expenditures and inventory levels) and use its best all commercially reasonable efforts to keep intact the Purchased Operating Business, keep available the services of the current employees of the Purchased Operating Business and preserve the relationships of the Business with material customers, suppliers, licensors, licensees, distributors and others with whom the Purchased Operating Business deals to the end that the Purchased Operating Business shall be unimpaired at the Closing. Prior to the Closing, Seller shall not take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Acquired Assets set forth in Article VI not being satisfied. Seller shall also confer with Purchaser concerning operational matters of a material nature to the extent permitted by Applicable Laws and shall report periodically to Purchaser concerning the status of the Businessdeals. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 5.01 or otherwise expressly permitted or required by the terms of this AgreementAgreement (other than pursuant to any ability to Cure (as defined in Section 6.05)), Seller shall not, and shall not permit any other member of the Seller Group to, do any of the following in connection with the Purchased Operating Business (except any action relating solely to Excluded Assets (other than the Acquired Coating Equipment) or Excluded Liabilities that could not reasonably be expected to have any affect on any Acquired Asset or Assumed Liability or Acquired Coating Equipment, on the conduct of the Business (other than operation of the Brainerd Facility) by Purchaser following the Closing or on the ability of Seller to perform its obligations (without giving effect to any ability to Cure) under this Agreement and the Ancillary Agreements) without the prior written consent of Purchaser:
(i) (A) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Applicable Law;
(ii) grant to any executive officer officer, director, employee or employee independent contractor any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated, or select any executive officer or employee for benefits under the Vista Chemical Company Discretionary Termination Plan except as may be required under such plan;
(iii) terminate the employment of any of the personnel of the Seller Group who principally works for or provides services to the Business; provided that the consent of Purchaser to any such action shall not be unreasonably withheld or delayed;
(iv) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtednessindebtedness or otherwise take any action to incur or assume, or fail to take any action required by any obligation or duty that results in the incurrence of, any other material liabilities or obligations of any nature, other than in the ordinary course of business and consistent with past practicepractice or which will be an Excluded Liability; PROVIDEDprovided, HOWEVERhowever, that in no event shall the Business incur incur, assume or assume guarantee any long-term indebtedness for borrowed money;
(ivv) permit, allow or suffer any Acquired Asset or Acquired Coating Equipment to become subjected to any Lien of any nature whatsoever that would have been required to be set forth in Schedule 3.05 or 3.06 if existing on the date of this Agreement;
(vvi) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(vivii) except for intercompany transactions dividends and distributions in cash to a member of the ordinary course of businessSeller Group or as required by the Affiliate Contracts, pay, loan or advance any amount to, or sell, transfer or lease any of its assets that would be Acquired Assets to, or enter into or amend or otherwise modify any agreement (including any Affiliate Contract) or arrangement with, Seller or any of its affiliates;
(viiviii) make any change in any method of accounting or accounting practice or policy other than those required by international accounting standardsGAAP;
(viiiix) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than in the ordinary course of businessinventory) that are material, individually or in the aggregate, to the Purchased Operating Business;
(ix) make or incur any capital expenditure that, individually or in the aggregate, exceeds the capital expenditure budget provided to Purchaser by more than $500,000Business and that would be Acquired Assets;
(x) sell, lease, license or otherwise dispose of any of its assets that are materialwould be Acquired Assets, individually or except inventory of finished goods sold, "broke" disposed of and other consumable assets used, in each case, in the aggregateordinary course of business and consistent with past practice;
(xi) acquire fee title to, to the Businessor an ownership interest in, any real property that would be an Acquired Asset or enter into any lease (or renewal of any lease) of real property that would be an Acquired Asset, except (A) inventory and obsolete or excess equipment sold any renewals of existing leases in the ordinary course of business and consistent with past practice (including in respect of term), with respect to which Purchaser shall have the right to participate and (B) any Excluded Asset identified to cure or remove imperfections in Schedule 1.02(b)title;
(xixii) enter into modify, amend, terminate or permit the lapse (other than lapses of leases of sales offices in accordance with the terms thereof) of any lease of of, or reciprocal easement agreement, operating agreement or other material agreement relating to, real property, property that would be an Acquired Asset (except any modifications or amendments associated with renewals of existing leases in the ordinary course of business; orbusiness and consistent with past practice with respect to which Purchaser shall have the right to participate);
(xiixiii) authorize enter into any transaction (including any employment agreement or contract but excluding the payment of wages and provision of benefits in accordance with existing Contracts and ordinary travel advances) with any current or former shareholder with beneficial ownership of at least 100,000 shares of the common stock of Seller, officer, director or employee of Seller or any affiliate of Seller (or member of their families or trusts for their benefit);
(xiv) enter into or amend any covenant not to compete, or enter into or amend any other covenant restricting the development, manufacture, marketing or distribution of the products and services of the Business;
(xv) with respect to any Acquired Entity, declare or pay a dividend or make a distribution or redeem or otherwise acquire any of its equity or other interests or any other security;
(xvi) with respect to any Acquired Entity, issue, deliver, sell, or dispose of, or commit authorize or propose the issuance, sale or disposition of, any equity or other interests or any other security or any option, warrant or right relating thereto, or any securities convertible into or exchangeable for any equity or other interests or any other security;
(xvii) make any purchase commitment for the Business in excess of the normal, ordinary and usual requirements or at any price in excess of the then current market price or for a period of greater than 90 days;
(xviii) enter into or amend in any material respect any continuing agreement or Contract for the distribution of any products manufactured by the Business (unless such agreement or Contract will be terminable by Purchaser following Closing without payment or penalty upon no more than 60 days' notice and any terms relating to exclusivity will be terminable by Purchaser immediately following Closing and at all times thereafter without prior notice, payment or penalty); provided that the consent of Purchaser to any such agreement or amendment shall not be unreasonably withheld or delayed;
(xix) enter into or amend any continuing agreement or Contract for the so-called "toll manufacture" of products by the Business on behalf of parties other than any member of the Seller Group;
(xx) enter into or amend any Contract that would be an Assigned Contract for the placement of advertising or other promotional activities, in any such case which has an aggregate future liability in excess of $50,000 or which, together with all other such agreements, contracts or arrangements, has an aggregate future liability in excess of $500,000;
(xxi) institute, settle or agree to takesettle any litigation, whether action or proceeding before any court or governmental body or waive or surrender any rights related to any pending or threatened litigation, action or proceeding except for any settlement, waiver or surrender that could not impair the use of any Acquired Asset or the operation or conduct of the Business; provided that the consent of Purchaser to any such action shall not be unreasonably withheld or delayed;
(xxii) enter into any license, option or other material agreement relating or pertaining to Assigned Intellectual Property or Assigned Technology that would constitute Acquired Assets or to the Intellectual Property or Technology of any third party except in writing respect of so-called "embedded technology" relating to equipment purchased from third party manufacturers or otherwisefor so called "shrink-wrap" license agreements relating to computer software licensed in the ordinary course of business;
(xxiii) enter into or amend any trackage rights, to do haulage rights, marketing agreements, joint facility agreements or other agreements affecting the operation of the Railroad;
(xxiv) abandon any part of the rail lines of the Railroad;
(xxv) take any action that limits or precludes Purchaser from (A) rejecting any Labor Contract or (B) setting any initial term or condition of employment for any Continued Employees;
(xxvi) enter into any lease, sublease or similar Contract with any person under which (A) any member of the Seller Group is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person in connection with the foregoing actions.Business or (B) any member of the Seller Group is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by any member of the Seller Group that would be an Acquired Asset, in any such case that has an aggregate future liability or receivable, as the case may be, in excess of $100,000 or is not terminable by such member of the Seller Group by notice of not more than 60 days for a cost of less than $50,000;
(xxvii) enter into any (A) continuing Contract that would be an Assigned Contract (other than a purchase order) for the future purchase of materials, supplies or equipment that has an aggregate future liability in excess of $100,000 or (B) management, service, consulting or other similar Contract that has an aggregate future liability in excess of $50,000;
(xxviii) enter into any Contract under which any member of the Seller Group has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than any member of the Seller Group) other than extensions of trade credit in the ordinary course of business and advances made in the ordinary course of business to employees of the Seller Group of the Seller Group for travel expenses;
(xxix) enter into any Contract that would be an Assigned Contract providing for indemnification of any person with respect to liabilities relating to any current or former business of any member of the Seller Group or any predecessor person;
(xxx) enter into any power of attorney (other than a power of attorney given in the ordinary course of business with respect to routine tax matters) that would be binding on Purchaser or with respect to any Acquired Asset or Assumed Liability after the Closing;
(xxxi) enter into any confidentiality agreement that would be an Assigned Contract (other than a confidentiality agreement entered into in the ordinary course of business and not with any person who (together with its affiliates) competes in any manner with the Business);
(xxxii) enter into any sales order (other than one-time sales orders entered into in the ordinary course of business that (A) except to the extent the buyer has asserted terms and conditions that have not been expressly agreed to by any member of the Seller Group, are subject to the Business' standard terms and conditions and (B) do not extend for a term more than 120 days from the date of this Agreement (unless terminable without payment or penalty upon no more than 60 days' notice));
(xxxiii) enter into any Contract (A) for the sale of any Acquired Asset (other than inventory sales in the ordinary course of business) or Acquired Coating Equipment, (B) for the grant of any preferential rights to purchase any Acquired Asset (other than inventory in the ordinary course of business) or Acquired Coating Equipment or (C) requiring the consent of any party to the transfer of any Acquired Asset or Acquired Coating Equipment and involving the payment by any party of at least $50,000 or affecting the use of an asset or assets with an aggregate original cost, replacement cost or fair market value of at least $50,000 or which are otherwise material to the Business;
(xxxiv) enter into any Contract with any Governmental Entity or any Contract with any person that would impose affirmative action obligations on Purchaser if assigned to Purchaser;
(xxxv) enter into any currency exchange, interest rate exchange, commodity exchange or similar Contract that would be an Assigned Contract;
(xxxvi) enter into any other Contract that would be an Assigned Contract or would affect any Acquired Asset or Acquired Coating Equipment and is for any joint venture, partnership or similar arrangement;
(xxxvii) enter into any other Contract that would be an Assigned Contract (other than a purchase order or a sales order) that has an aggregate future liability to any person in excess of $100,000 or extends for a term more than one year from the date of this Agreement (unless terminable without payment or penalty upon no more than 60 days' notice);
(xxxviii) enter into any Contract under which (A) any person has the right to use all or any assets (including track, yards and other facilities) of the Railroad, or (B) granting any member of the Seller Group the right to use all or any portion of any rail line, rail yards, or other rail facilities of any other person;
(xxxix) enter into any trackage rights, haulage, interchange, joint facility switching and similar Contracts; or
Appears in 1 contract
Samples: Asset Purchase Agreement (Sappi LTD)
Covenants of Seller Relating to Conduct of Business. (a) Except for matters set forth in Schedule 5.01 6.01(a) of the Seller Disclosure Schedule or otherwise expressly permitted by the terms of this Agreement, from the date of this Agreement to the Closing, Seller shall conduct the Business in the usual, regular and or ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use its best commercially reasonable efforts to keep intact the Purchased Operating Business, keep available the services of the current employees of the Purchased Operating Business Postano Employees and preserve the relationships of the Business with customers, suppliers, licensors, licensees, distributors and others with whom the Purchased Operating Business Seller deals to in connection with the end that the Purchased Operating Business shall be unimpaired at the ClosingBusiness. Prior to the Closing, Seller shall not take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Acquired Assets set forth in Article VI VII not being satisfied. Seller shall also confer with Purchaser concerning operational matters of a material nature to the extent permitted by Applicable Laws and shall report periodically to Purchaser concerning the status of the Business. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 5.01 or otherwise expressly permitted or required by the terms of this Agreement, Seller shall not do any of the following in connection with the Purchased Operating Business without the prior written consent of Purchaser:
(i) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Applicable Law;
(ii) grant to any executive officer or employee Postano Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated, or select any executive officer or employee for benefits under the Vista Chemical Company Discretionary Termination Plan except as may be required under such plan;
(iii) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business and consistent with past practice; PROVIDED, HOWEVER, that in no event shall the Business incur or assume any long-term indebtedness for borrowed money;
(ivii) permit, allow or suffer any Acquired Asset to become subjected to any Lien of any nature whatsoever that would have been required to be set forth in Schedule 3.05 or 3.06 if existing on the date of this AgreementLien;
(viii) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(vi) except for intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its assets tothe Acquired Assets, or enter into any agreement or arrangement with, Seller or any of its affiliates;
(vii) make any change in any method of accounting or accounting practice or policy other than those required by international accounting standards;
(viii) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than except in the ordinary course of business) that are material, individually or in the aggregate, to the Purchased Operating Business;
(ix) make or incur any capital expenditure that, individually or in the aggregate, exceeds the capital expenditure budget provided to Purchaser by more than $500,000;
(xiv) sell, lease, license or otherwise dispose of any of its assets that are material, individually or in the aggregate, to the BusinessAcquired Assets, except (A) inventory and obsolete or excess equipment sold in the ordinary course of business and consistent with past practice and (B) any Excluded Asset identified in Schedule 1.02(b)practice;
(xiv) change or modify its credit, collection or payment policies, procedures or practices with respect to the Business, including by accelerating collections of receivables (whether or not past due), failing to pay payables or other liabilities related to the Business when due, or delaying payment of any trade payable for a period longer than the commercial payment terms applicable to such payable;
(vi) enter into into, amend or modify any lease of real property, Contract except any renewals of existing leases in the ordinary course of business; or
(xiivii) authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of, the foregoing actions.
Appears in 1 contract
