Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure Schedule, (y) expressly agreed to by Purchaser (which agreement shall not be unreasonably withheld or delayed) or (z) otherwise contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing Date, Seller shall, and shall cause the Seller Affiliates to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal in connection with the conduct of the Business in the ordinary course of business. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates and certain of their respective affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 and that such termination shall not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section 5.01 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as otherwise contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed): (i) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant to any executive officer or other key employee exclusively engaged in the Business any increase in compensation or benefits, except (A) as required by Applicable Law, (B) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions; (ii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice; (iii) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoever; (iv) waive any claims or rights of material value that relate exclusively to the Business; (v) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law; (vi) sell, lease, license or otherwise dispose of any Transferred Asset that is material to the Business, taken as a whole, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into in the ordinary course of business with aggregate lease payments not in excess of $100,000 per annum; (vii) enter into any lease of real property that relates exclusively to the Business; or (viii) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (xw) set forth in Section 5.01 of the Seller Disclosure Schedule, (yx) expressly agreed to in writing in advance by Purchaser (which agreement consent shall not not, in the case of an activity described in clause (vii) or (viii) below, be unreasonably withheld withheld, conditioned or delayed), (y) required by Applicable Law or (z) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement to through the applicable Closing DateClosing, Seller shall, and shall cause the Seller Affiliates Subsidiaries to, (i) conduct the Business in all material respects in the ordinary course Ordinary Course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, Business and (ii) use commercially reasonable best efforts to keep intact the Business, keep available the services of the current employees of the Business and preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates Subsidiaries deal with in connection with the conduct of the Business in the ordinary course Ordinary Course of business. Notwithstanding the foregoingBusiness; provided, except as otherwise provided in the Transitional Services Agreement, that Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates Subsidiaries and certain of their respective affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 11.02 and that such termination shall not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, without limiting the generality of the foregoing, except as for matters (I) set forth in Section 5.01 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as (II) required by Applicable Law or (III) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement through the Closing, Seller shall not, and shall not cause permit any of the Seller Affiliates Subsidiaries to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall not not, in the case of a consent to engage in activity described in clause (vii) below, be unreasonably withheld withheld, conditioned or delayed):
(i) adopt subject any Transferred Asset to, or amend in permit any material respect Transferred Asset to be subjected to, any Seller Benefit Plan in a manner affecting Lien (other than Permitted Liens) of any Business Employee or grant to any executive officer or other key employee exclusively engaged in nature whatsoever that would not be released at the Business any increase in compensation or benefits, except (A) as required by Applicable Law, (B) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positionsClosing;
(ii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice;
(iii) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoever;
(iv) waive any claims or rights of material value that relate exclusively value, or cancel any indebtedness owed to the BusinessSeller or the Seller Subsidiaries that, if existing at the Closing, would be included in the Transferred Assets;
(v) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law;
(viiii) sell, lease, license or otherwise dispose of any asset, property or right (including any Intellectual Property) that, if held by Seller or a Seller Subsidiary at the Closing, would be a Transferred Asset that is material to the Business, taken as a wholeAsset, except (A) Inventory and for sales of de minimis quantities of obsolete or excess Equipment assets sold or disposed of in the ordinary course Ordinary Course of business, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into in the ordinary course of business with aggregate lease payments not in excess of $100,000 per annumBusiness;
(viiiv) enter into any lease of real property that relates exclusively to the Business; or
(viii) agreeemployment, whether in writing consulting or otherwise, to do other agreement or arrangement with any employee of the foregoing.Business that would prohibit such employee from accepting employment with Purchaser;
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure Schedule, (y) expressly agreed to by Purchaser (which agreement shall not be unreasonably withheld or delayed) or (z) otherwise contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing Date, Seller shall, and shall cause the Seller Affiliates to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal with in connection with the conduct of the Business in the ordinary course of business. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates and certain of their respective affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 10.03 and that such termination shall not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section 5.01 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as otherwise contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed):
(i) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant to any executive officer or other key employee exclusively engaged in the Business any increase in compensation or benefits, except (A) as required by Applicable Law, (B) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(ii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice;
(iiiii) subject any of the Transferred Assets to any Lien (other than Permitted Liens Liens) of any nature whatsoever;
(iviii) waive cancel, waive, release or assign any material rights or claims or rights of material value that relate exclusively to the Business, or permit any such right or claim to lapse;
(iv) delay or postpone the payment of accounts payable of the Business or accelerate the collection of accounts receivable or intercompany receivables of the Business, or write down the value of any Transferred Asset or write off as uncollectible any accounts or notes receivable of the Business, in each case, other than in the ordinary course of business consistent with past practice;
(v) make any change in any method of accounting or accounting principles, practice or policy (or change any annual accounting period) that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law;
(vi) sell, lease, license or otherwise dispose of any Transferred Asset that is material to the Business, taken as a whole, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of businessbusiness consistent with past practice, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into in the ordinary course of business with aggregate lease payments not in excess of $100,000 150,000 per annum;
(vii) enter into any lease of real property that relates only to the extent such actions would relate exclusively to the BusinessTransferred Assets, make or rescind any election relating to Taxes or adopt or change any method of accounting in respect of Taxes, in each case that would materially increase Purchaser’s Taxes in a Post-Closing Tax Period;
(viii) initiate, settle or compromise any Proceeding relating primarily to the Business (whether or not commenced prior to the date of this Agreement), other than settlements or compromises for Proceedings set forth on Section 3.10 of the Seller Disclosure Schedule on solely monetary terms where the amount paid in settlement or compromise does not exceed $150,000 in the aggregate;
(ix) grant or permit allowances or discounts on the Products, other than in the ordinary course of business consistent with past practice;
(x) other than in the ordinary course of business, with respect to any Contract described in any of clauses (i), (ii), (iii), (iv) and (v) of Section 3.07(a), (A) enter into a new agreement or Contract that would have been required to be listed on Section 3.07 of the Seller Disclosure Schedule if it had been entered into as of the date of this Agreement, or (B) amend, waive any rights under, modify or terminate any such agreement or any agreement or Contract listed on Section 3.07 of the Seller Disclosure Schedule; or
(viiixi) agree, whether in writing or otherwise, to do any of the foregoing.
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Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure ScheduleSchedule 5.01, (y) expressly agreed to by Purchaser (which agreement shall not be unreasonably withheld or delayed) or (z) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing Date, Seller shall, and shall cause the Seller Affiliates to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal in connection with the conduct of the Business in the ordinary course of business. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates and certain of their respective its affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 10.03 and that such termination shall not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section Schedule 5.01 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except or as otherwise contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates not to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed):) to the extent permitted by Applicable Law:
(i) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant to any executive officer or other key employee exclusively engaged in the Business any increase in compensation or benefits, except (A) as required by Applicable Law, (B) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(ii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice;
(iii) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoeverwhatsoever that would have been required to be set forth in Schedule 3.05 if existing on the date of this Agreement;
(ivii) waive any claims Claims or rights of material value that relate exclusively to the Business;
(v) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law;
(viiii) sell, lease, license or otherwise dispose of any Transferred Asset that is material to the Business, taken as a whole, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into in the ordinary course of business with aggregate annual lease payments not in excess of $100,000 per annum100,000;
(viiiv) fail to maintain any Transferred Trademarks or fail to maintain in any material respect any Other Transferred Intellectual Property or any Transferred Technology (in either case other than in the ordinary course of business in a manner substantially consistent with past practice) or grant to any person a license in respect of any Transferred Intellectual Property or Transferred Technology;
(v) other than in the ordinary course of business in a manner substantially consistent with past practice, fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, liabilities or obligations of the Business when due and payable;
(vi) enter into any lease new Contract that would be required to be listed on Schedule 3.07(a) if it were in effect on the date of real property that relates exclusively to the Businessthis Agreement; or
(viiivii) agree, whether in writing or otherwise, to do any of the foregoing.
(b) Seller shall use its reasonable best efforts to keep, or to cause to be kept, all insurance policies currently maintained with respect to the Transferred Assets (the “Seller Insurance Policies”), or suitable replacements therefor, in full force and effect through 11:59 p.m. on the Closing Date; it being understood that any and all Seller Insurance Policies are owned and maintained by Seller and its affiliates (and do not exclusively relate to the Business). Purchaser will not have any rights under the Seller Insurance Policies from and after the Closing Date.
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (xa) set forth in Section 5.01 6.1 of the Seller Disclosure Schedule, (yb) expressly agreed to by Purchaser in writing (which agreement shall not be unreasonably withheld or delayed) or (zc) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing Date, Seller shall, and shall cause the Seller Affiliates to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, and use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal deals with in connection with the conduct of the Business in the ordinary course of businessBusiness. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that certain relationships with Seller, the Seller and its Affiliates and certain of their respective affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 11.4 and that such termination shall not constitute be deemed a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section 5.01 6.1 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as Schedule or otherwise expressly contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates to, do any of the following in connection with the Business from the date of this Agreement to the Closing Date without the prior written consent of Purchaser (which consent shall not be unreasonably withheld withheld, conditioned or delayed):
(i) adopt or amend in subject any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant of the Transferred Assets to any executive officer Lien other than Permitted Liens;
(ii) waive any claims or other key employee exclusively engaged in rights of material value that relate primarily to the Business or the Transferred Assets;
(iii) sell, lease, sublease, license, sublicense or otherwise dispose of any increase in compensation or benefitsTransferred Asset, except (A) as required by Applicable Law, (B) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business consistent with past practice or as required under existing agreements (B) sales or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number dispositions of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees assets in the context ordinary course of promotions based on job performance business consistent with past practice that do not exceed $100,000 in the aggregate;
(iv) fail to maintain in any material respect any Transferred Trademarks, Transferred Patents, Other Transferred Intellectual Property or workplace requirementsTransferred Technology or grant any person a license in respect of any Transferred Intellectual Property or Transferred Technology, in each case other than in the ordinary course of business consistent with past practice;
(v) other than in the ordinary course of business consistent with past practice, plansfail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, agreements, benefits liabilities or obligations of the Business when due and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positionspayable;
(iivi) enter into any new Contract that would be a Transferred Contract, except in the ordinary course of business consistent with past practice;
(vii) extend, modify, terminate, renew, fail to renew or waive a material right under, a Transferred Contract, except in the ordinary course of business;
(viii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice;
(iii) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoever;
(iv) waive any claims or rights of material value that relate exclusively to the Business;
(vix) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards IAS or required by Applicable applicable Law;
(vi) sell, lease, license or otherwise dispose of any Transferred Asset that is material to the Business, taken as a whole, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into in the ordinary course of business with aggregate lease payments not in excess of $100,000 per annum;
(viix) enter into any material lease of real property that relates exclusively to the Business;
(xi) materially diminish, increase or terminate trade or consumer promotional programs that in the aggregate are material to the Business, except in the ordinary course of business consistent with past practice; or
(viiixii) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure ScheduleSchedule 5.01, (y) expressly agreed to in writing by Purchaser (which agreement shall not be unreasonably withheld or delayed) or (z) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing Date, Seller shall, and shall cause the Seller Affiliates to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal with in connection with the conduct of the Business in the ordinary course of business. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates and certain of their respective its affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 10.03 and that such termination shall not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section Schedule 5.01 of the Seller Disclosure Schedule, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as or otherwise contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates not to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed):
(i) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant to any executive officer or other key employee exclusively engaged in the Business any increase in compensation or benefits, except (A) as required by Applicable Law, (B) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or (C) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries or affiliates; provided that the foregoing shall not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(ii) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice;
(iii) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoeverLiens;
(ivii) waive any claims or rights of material value that relate exclusively primarily to the BusinessBusiness or the Transferred Assets;
(v) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law;
(viiii) sell, lease, license or otherwise dispose of any Transferred Asset that is material to the Business, taken as a wholeAsset, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business;
(iv) diminish or increase in a material way or terminate promotional programs that individually or in the aggregate are material to the Business, (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into except in the ordinary course of business with aggregate lease payments not in excess of $100,000 per annumbusiness;
(viiv) enter into any lease into, extend, modify, terminate or renew, or waive an material right under, the Transferred Contracts, except in the ordinary course of real property that relates exclusively to the Businessbusiness; or
(viiivi) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure ScheduleLetter, (y) expressly agreed to by Purchaser in writing (which agreement shall not be unreasonably withheld or delayed) or (z) otherwise expressly contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing DateClosing, Seller shall, and shall cause the Seller Affiliates Parties to, conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice and, to the extent consistent therewith, and use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates Parties deal in connection with the conduct of the Business in the ordinary course of businessBusiness. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates Parties and certain of their respective affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 and that such termination shall will not constitute a breach of this Agreement. As used in this Section 5.01, the term “Business” shall mean (x) from the date of this Agreement to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In addition, except as set forth in Section 5.01 of the Seller Disclosure ScheduleLetter, except with respect to matters as to which Purchaser shall have no obligations, liabilities and commitments after the applicable Closing and except as otherwise expressly contemplated by the terms of this Agreement, Seller shall not, and shall not cause any of the Seller Affiliates Parties not to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall will not be unreasonably withheld or delayed):
(ia) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Irapuato Business Employee or Employee, grant to any executive officer or other key employee exclusively engaged in the Business any increase in compensation or benefits, or make any award or grant under any Seller Benefit Plan, to any Irapuato Business Employee in each case except (Ai) as required by Applicable Law, (Bii) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or any applicable CBA, (Ciii) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates Parties or their respective subsidiaries affiliates or affiliates(iv) for any increases in compensation or benefits for which Seller or the Seller Parties will be solely liable; provided that the foregoing shall will not restrict Seller or the Seller Affiliates Parties from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practicebusiness, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions;
(iib) incur or assume any liabilities, obligations or indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practicebusiness;
(iiic) subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoever, other than Permitted Liens;
(ivd) waive any claims or rights of material value that relate exclusively to the BusinessBusiness or the Transferred Assets;
(ve) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards generally accepted accounting principles or required by Applicable Law;
(vif) enter into any Contract that will be a Transferred Contract, except in the ordinary course of business;
(g) extend, modify, terminate, renew, or waive a material right under, a Transferred Contract, except in the ordinary course of business;
(h) sell, lease, license sublease, license, sublicense or otherwise dispose of any material Transferred Asset that is material to the Business, taken as a wholeAsset, except (A) Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business, business or (B) any Excluded Asset described in Section 1.02(b) and (C) leases entered into sales or dispositions of assets in the ordinary course of business with aggregate lease payments that do not in excess of exceed $100,000 per annumin the aggregate;
(viii) abandon, allow to lapse cancel or fail to maintain and protect any Transferred Intellectual Property and Transferred Technology that is material to the Business;
(j) enter into any lease of real property that relates exclusively to the Business;
(k) materially diminish, materially increase or terminate trade or consumer promotional programs that relate exclusively to the Business and in the aggregate are material to the Business, except in the ordinary course of business; or
(viiil) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Covenants Relating to Conduct of the Business. (a) Except for matters (x) set forth in Section 5.01 of the Seller Disclosure Schedule, (y) expressly agreed to in writing by Purchaser (which agreement shall may not be unreasonably withheld withheld, conditioned or delayed) or (z) otherwise contemplated by the terms of this Agreement, from the date of this Agreement to the applicable Closing DateClosing, Seller shallwill, and shall will cause the Seller Affiliates to, (i) conduct the Business in all material respects in the ordinary course of business in a manner substantially consistent with past practice andbusiness, (ii) use commercially reasonable efforts to maintain and preserve intact the extent consistent therewithBusiness, (iii) use commercially reasonable efforts to preserve the material rights and goodwill of the Business and business relationships with customers, suppliers, distributors and others with whom Seller and the Seller Affiliates deal in connection with the conduct of the Business in the ordinary course of business, (iv) use commercially reasonable efforts to comply in all material respects with any Transferred Contracts of the Business, (v) comply in all material respects with all Applicable Laws, (vi) maintain the validity of existing pharmacy, clinical and other federal, state or local Permits, certifications and Medicare and Medicaid provider status, including any renewals or extensions thereof, consistent with past practices, and (vii) provide notice to Purchaser if Seller opens, closes, or relocates any store or other facility related to or containing the Business. Notwithstanding the foregoing, except as otherwise provided in the Transitional Services Agreement, Purchaser acknowledges and agrees that relationships with Seller, the Seller Affiliates and certain of their respective affiliates Affiliates providing services to the Business will terminate as of the applicable Closing as contemplated in Section 11.03 11.02 and that such termination shall will not constitute a breach of this Agreement. As used in this Section 5.01Without limiting the generality of the foregoing, the term “Business” shall mean (x) from the date of this Agreement prior to the Global Closing Date, the Global Business and the China Business and (y) from the Global Closing Date to the China Closing Date, the China Business. In additionClosing, except as set forth in Section 5.01 of the Seller Disclosure Schedule, except Schedule or with respect to matters as to which Purchaser shall will have no obligations, liabilities and commitments Liabilities after the applicable Closing Closing, and except as otherwise expressly contemplated by the terms of this AgreementAgreement or as required by Applicable Law, Seller shall will not, and shall will not cause any of the Seller Affiliates to, do any of the following in connection with the Business without the prior written consent of Purchaser (which consent shall may not be unreasonably withheld withheld, conditioned, or delayed):
(ia) adopt or amend in any material respect any Seller Benefit Plan in a manner affecting any Business Employee or grant to any executive officer Business Employee or other key employee exclusively engaged to the Business Employees in the Business aggregate any material increase in compensation or benefits, except (Ai) as required by Applicable Law, (Bii) in the ordinary course of business consistent with past practice or as required under existing agreements or Seller Benefit Plans disclosed to Purchaser or Plans, (Ciii) as would relate to a substantial number of other similarly situated employees of Seller, the Seller Affiliates or their respective subsidiaries Affiliates other than the Business Employees, or affiliates(iv) as described in Section 3.11(e)(i) of the Seller Disclosure Schedule; provided that the foregoing shall does not restrict Seller or the Seller Affiliates from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practicebusiness, plans, agreements, benefits and compensation arrangements that have a value that is consistent with past practice; and provided further that Seller will promptly notify Purchaser of any changes described under this Section 5.01(a) that affect the past practice of making compensation and benefits available to newly hired or promoted employees in similar positionsBusiness Employees;
(iib) incur or assume any liabilities, obligations Liabilities or indebtedness Indebtedness for borrowed money exclusively of the Business or guarantee any such liabilities, obligations or indebtednessBusiness, other than in the ordinary course of business consistent with past practicebusiness, that would be Assumed Liabilities;
(iiic) voluntarily subject any of the Transferred Assets to any Lien other than Permitted Liens of any nature whatsoever, other than Permitted Liens;
(ivd) waive enter into a Contract to acquire any claims pharmacies or rights medical clinics other than in connection with acquisitions of material value that relate exclusively new retail stores;
(e) terminate, waive, modify or fail to take reasonable action to prevent termination, modification or expiration of, any existing Material Permits or Medicare and Medicaid provider numbers;
(f) materially change the amount of coverage, cancel or allow to lapse, or fail to renew, any insurance covering Seller or any Seller Affiliate with respect to the Business;
(vg) make any change in any method of accounting or accounting practice or policy that is exclusively applicable to the Business other than those required or permitted by International Financial Reporting Standards or required by Applicable Law;
(vi) divest, sell, transfer, lease, license license, abandon, allow to lapse, mortgage, pledge or enter into a Contract or discussions with any other party to sell, remove or otherwise dispose of any Transferred Asset that is material to the Business, taken as a wholeAsset, except (Ai) pursuant to existing Contracts or commitments disclosed to Purchaser in writing prior to the date hereof, (ii) sales of Inventory and obsolete or excess Equipment sold or disposed of in the ordinary course of business, or (Biii) in connection with a permitted store opening, closing or relocation;
(h) waive any Excluded Asset described in Section 1.02(bclaim or compromise, settle or agree to settle any Proceeding related to the Business, unless such settlement only involves payment of money or remediation actions that do not create a material limitation, restriction, or obligation on the Transferred Permits;
(i) and fail to make capital expenditures necessary to satisfy applicable regulatory requirements with respect to the Business (Cwhich will not include any requirement to build-out consultation rooms);
(j) leases entered enter into in any Contract outside the ordinary course of business business, with aggregate lease payments not in excess of $100,000 1,000,000 per annum, that if held by Seller or any Seller Affiliates as of immediately prior to the Closing would have constituted a Transferred Contract;
(viik) enter into into, modify, extend or cancel any lease third-party payor Contracts with respect to the Business that if held by Seller or any Seller Affiliates as of real property immediately prior to the Closing would have constituted a Transferred Contract, provided, that relates exclusively Seller and the Seller Affiliates may renew such third-party payor Contracts without consent so long as any such renewed third-party payor Contract is not binding upon Purchaser;
(l) in any material respect, amend, waive, modify, supplement, extend, terminate, fail to take reasonable action to renew, assign, encumber or otherwise transfer, in whole or in part, its rights and interests in or under any Transferred Contract or any Lease that would have an adverse impact on the Business in any material respect;
(m) adopted a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization related to, involving or in respect of the Business; or
(viiin) agreeagree or commit, whether in writing or otherwise, to do any of the foregoing.
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