Interim Operations of the Business. From and after the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions: (a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities; (b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities; (c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities; (d) declare, set aside or pay any dividend or other distribution other than in each case for cash; (e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below); (f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice; (g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances); (h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security; (i) enter into any Material Contract or materially amend or modify or terminate any Material Contract; (j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice; (k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business; (l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act; (m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business; (n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or (o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 4 contracts
Samples: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.), Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.)
Interim Operations of the Business. From Seller shall use commercially reasonable efforts to procure that, and Seller covenants and agrees that, after the date hereofhereof and prior to the Closing Date, except (i) as expressly provided in this Agreement, (ii) as set forth in the Disclosure Schedule or (iii) as may be agreed in writing by Purchaser or Purchaser's Subsidiary, which agreement shall not be unreasonably withheld or delayed:
(a) Except as set forth in Section 6.1(a) of the Disclosure Schedule, the Sellers Business shall conduct be conducted in the Business same manner as heretofore conducted and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course, and each of Seller, the Business and any Business Subsidiary shall use commercially reasonable efforts to preserve the business organization of the Business intact, keep available the services of the current officers and key employees of the Business and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners, employees and others having business dealings with the Business, to the end that the goodwill and ongoing business of the Business shall be unimpaired at the Closing Date. The Business shall not institute any new methods of manufacture, purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes in the ordinary course of business and consistent with past practice, except as set forth in Section 6.1(a) of the Disclosure Schedule;
(b) Seller and the Business Subsidiaries will obtain and renew, all Permits necessary to conduct the Business as it is presently being conducted or will be conducted in accordance with the ordinances, rules, requirements and regulations of any Governmental Entity having jurisdiction over its properties or activities in all material respects;
(c) Seller shall (i) take reasonable actions consistent with historical practice to preserve and protect the Intellectual Property, (ii) maintain the books, records and accounts of the Business in the usual, regular and ordinary course of business on a basis consistent with past practice and use their commercially reasonable efforts to in accordance with GAAP and (iii) maintain, preserve intact the Purchased Assets and the assets protect all of the Purchased Entities (Assets in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (condition in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth they exist on Section 6.1 of the Disclosure Schedule, from and after the date hereof, except for ordinary wear and tear;
(d) Without the Sellers shall not prior consent of the other party, no party hereto may intentionally and knowingly take any action that would cause the conditions precedent set forth in Article VII to effect the Transactions contemplated hereby not to be fulfilled, including, without limitation, taking or causing to be taken any action which would cause the representations and warranties made by such party herein not to be true, correct and complete as of the following actions with respect to the Business, and Closing;
(e) Seller shall cause the Purchased Entities use all commercially reasonable efforts not to take allow any of the following actions:
Business Subsidiary to: (ai) adopt any change in the respective certificates amend its certificate of incorporation or bylaws by- laws or other similar organization or governing documents of the Purchased Entities;
organizational documents, (b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities;
(c) (iii) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of any class or series of its capital stock of the Purchased Entitiesor Voting Debt, or (ii) grant any option, warrant securities convertible into or other right to purchase or obtainexchangeable for, or otherwise dispose options, warrants, calls, commitments or rights of or encumberany kind to acquire, any shares of the equity securities any class or series of the Purchased Entities;
its capital stock or any Voting Debt, (diii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to any shares of any class or series of its capital stock; (iv) split, combine or reclassify any shares of any class or series of its capital stock; or (v) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares;
(f) Seller shall not allow (with respect to the Business) nor vote to allow any Business Subsidiary, and shall use all commercially reasonable efforts not to allow any Business Subsidiary, to modify, amend or terminate any of its Material Contracts or waive, release or assign any material rights or claims, except in the ordinary course of business and consistent with past practice;
(g) Seller shall use all commercially reasonable efforts to not allow, and shall not vote to allow, any of the Business Subsidiaries to: (i) incur or assume any long-term debt, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding $50,000 in the aggregate from the date hereof until the Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by any Business Subsidiary, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except as described in Section 6.1(g) of the Disclosure Schedule as being in the ordinary course of business and consistent with past practice; (v) make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into any material commitment or transaction (including any joint venture, partnership, capital expenditure or purchase, sale or lease of assets or real estate) other than pursuant to those set forth in Section 6.1(g) of the Disclosure Schedule; (vii) write down the value of any inventory or write off as uncollectible any notes or accounts receivable; or (viii) change any of the banking or safe deposit arrangements described or referred to in Section 6.1(g) of the Disclosure Schedule;
(h) Seller shall not allow (with respect to the Business), and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to lease, license, mortgage, pledge, or encumber any assets other than in each case for cashthe ordinary and usual course of business and consistent with the past practice described in Section 6.1(f) of the Disclosure Schedule or transfer, sell or dispose of any assets other than in the ordinary and usual course of business and consistent with past practice or dispose of or permit to lapse any rights to any Intellectual Property;
(ei) Seller shall not allow (with respect to the Business), and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to make any change in the compensation payable or to become payable to any of the officers, employees, agents or consultants of the Business (other than normal recurring increases in the ordinary course of business consistent with past practice in wages payable to employees who are not officers of the Business) or to Persons providing management services to the Business, or enter into or consummate amend any transaction involving the acquisition employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of the business officers, employees, Affiliates, agents or stock consultants of the Business or make any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(orj) Seller shall not allow (with respect to the Business) nor vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to (i) pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer or employee of the Business, or pay or agree to pay or make any accrual or arrangement for payment to any officer or employee of the Business of any amount relating to unused vacation days, except to the extent constituting Seller or a going concern businessBusiness Subsidiary is unconditionally obligated to do so on the date hereof, assets (ii) adopt or pay, grant, issue, accelerate or accrue salary or other properties) payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any other Person officer, employee, agent or consultant of the Business, whether past or present, except to the extent Seller or a Business Subsidiary is unconditionally obligated to do so on the date hereof, or (iii) amend in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(k) Seller shall not allow (with respect to the Business) and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Purchaser and Purchaser's Subsidiary, except policies providing coverage for losses not in excess of $100,000 which are replaced without diminution in or gaps in coverage ;
(l) Seller shall not allow (with respect to the Business) and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to enter into any contract or transaction relating to the purchase of assets other than purchases in the ordinary course of inventory business consistent with past practices;
(m) Seller shall not vote to allow and capital equipment shall use all commercially reasonable efforts to not allow any Business Subsidiary to pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or settle any pending litigation other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business;.
(n) Seller shall not vote to allow and shall use all commercially reasonable efforts to not allow any Seller's Foreign Subsidiary to pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or settle any pending litigation other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sellof claims, assign, lease, license, transfer liabilities or otherwise dispose of any material amount of the Purchased Assets obligations or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(lo) terminate Seller shall not vote to allow and shall use all commercially reasonable efforts to not allow any Business Subsidiary to adopt a plan of complete or close any facilitypartial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Actreorganization;
(mp) incur Seller shall file, on a timely basis, with appropriate taxing authorities all Tax Returns required to be filed prior to the Closing Date with respect to, or on behalf of, operations of the Business or any Seller's Purchased Subsidiary.
(q) Seller shall not vote to allow and shall use all commercially reasonable efforts to not allow any Seller's Purchased Subsidiary to (i) change any of the accounting methods used by it unless required by GAAP or the laws or accounting principles or practices of the jurisdiction to which it is subject or (ii) make any election relating to Taxes, change any election relating to Taxes already made, adopt any accounting method relating to Taxes, change any accounting method relating to Taxes unless required by GAAP or the laws or accounting principles or practices of the jurisdiction to which it is subject, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment;
(r) Seller shall not allow (with respect to the Business) and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to take, or agree to or commit to take, any capital expenditures materially action that would or is reasonably likely to result in excess any of the capital expenditure budget Made Available to Purchaser prior conditions to the date of this AgreementClosing set forth in Article VII not being satisfied, or enter into would make any new line representation or warranty of businessSeller contained herein inaccurate in any respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of Seller, Purchaser or Purchaser's Subsidiary to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
(ns) take Seller shall not allow (with respect to the Business) and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any action or omit Business Subsidiary to take any action that which would require disclosure pursuant increase the accounts receivables of West Africa Chemicals to Section 4.6 if each representation an amount greater than $600,000 (six hundred thousand dollars), between the date hereof and warranty contained therein were remade as the Closing Date;
(t) Seller shall keep Parent and Purchaser informed of the time status of such action or omission; orany discussion regarding the renegotiated license agreement with B.M.E. and any developments related thereto;
(ou) Seller shall not allow (with respect to the Business) and shall not vote to allow, and shall use all commercially reasonable efforts to not allow, any Business Subsidiary to take any action which would have or be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect; and
(v) Seller shall not allow (with respect to the Business) and shall not vote to allow and shall use all commercially reasonable efforts to not allow any Business Subsidiary to enter into any agreement, contract, commitment or arrangement to do any of the foregoing, or authorize, recommend, propose or agree or commit announce an intention to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/)
Interim Operations of the Business. From Subject to any obligations as a debtor or debtor-in-possession under the Bankruptcy Code, or order of the Bankruptcy Court or other court of competent jurisdiction, Seller shall use its reasonable best efforts to ensure that, and Seller covenants and agrees that, after the date hereofhereof and prior to the Closing Date, except as (i) expressly provided in this Agreement, the Sellers shall conduct Bankruptcy Code or Applicable Law, (ii) explicitly set forth in the operating plan submitted to Purchaser by Seller in connection with the Loan Agreement, or (iii) may be agreed in writing by Purchaser:
(i) the Business shall be conducted in the same manner as heretofore conducted and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and (ii) each of Seller and any Subsidiary of Seller shall use their commercially its reasonable best efforts to preserve intact the Purchased Assets and the assets business organization of the Purchased Entities (in each caseBusiness intact, tangible keep available the services of the current officers and intangible)employees of the Business and maintain the existing relations with franchisees, ordinary wear and tear exceptedcustomers, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assetssuppliers, creditors, business organizations and relationships with partners, employees and third parties others having material business dealings with the Business or Business, to the Purchased Entities. Without limiting end that the generality goodwill and ongoing business of the foregoing, except (w) as otherwise expressly required by this Agreement or Business shall be unimpaired at the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased EntitiesClosing Date;
(b) adopt a plan or agreement Seller and any Subsidiary of complete or partial liquidationSeller shall use its reasonable best efforts to maintain, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any preserve and protect all of the Purchased EntitiesAcquired Assets in the condition in which they exist on the date hereof, except for ordinary wear and tear;
(c) (i) issue, sell, transfer, pledge, dispose neither Seller nor any Subsidiary of or encumber Seller shall file with the Equity Interests or Bankruptcy Court any shares of capital stock of the Purchased Entitiespleading seeking authority to reject, or (ii) grant to assume and assign to any option, warrant or party other right to purchase or obtain, or otherwise dispose of or encumberthan Purchaser, any of the equity securities of the Purchased Entitieslease or executory contract to be acquired hereunder by Purchaser;
(d) declare, set aside or pay neither Seller nor any dividend Subsidiary of Seller shall enter into any employment or other distribution other than in each case for cashagreement with or make any loan or advance to, any officers or employees or hire any employees;
(e) enter into neither Seller nor any Subsidiary of Seller shall take, or consummate agree to or commit to take, any transaction involving the acquisition action that would or is reasonably likely to result in any of the business or stock (or, conditions to the extent constituting a going concern businessClosing set forth in Article VII not being satisfied, assets or other properties) would make any representation or warranty of Seller contained herein inaccurate in any respect at, or as of any other Person (other than purchases time prior to, the Closing Date, or that would materially impair the ability of inventory and capital equipment Seller or Purchaser to consummate the Closing in accordance with the ordinary course of business consistent with past practice, subject to clause (n) below)terms hereof or materially delay such consummation;
(f) sellneither Seller nor any Subsidiary of Seller shall take any action which would have or reasonably be expected to have, assign, lease, license, transfer individually or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practiceaggregate, a Material Adverse Effect;
(g) mortgage neither Seller nor any Subsidiary shall (i) amend, supplement or pledge otherwise modify, waive any of the material assets of the Purchased Entities, tangible rights under or intangible, terminate any Assigned Contract or create or suffer to exist (ii) enter into any material Encumbrance thereupon (other than Permitted Encumbrances)Contract which would be an Assigned Contract hereunder;
(h) neither Seller nor any Subsidiary shall take any action not in compliance with any covenant or other than agreements set forth in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;Loan Agreement; and
(i) neither Seller nor any Subsidiary of Seller shall enter into any Material Contract or materially amend or modify or terminate any Material agreement, Contract;
(j) enter into any new benefit or compensation plan, program, agreement commitment or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or do any of its Affiliates (other than the Purchased Entities) foregoing or to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, violate any of the foregoing. Notwithstanding anything herein , or authorize, recommend, propose or announce an intention to the contrary, nothing herein shall do or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to violate any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiesforegoing.
Appears in 3 contracts
Samples: Asset Sale Agreement (Ibeam Broadcasting Corp), Asset Sale Agreement (Williams Communications Group Inc), Asset Sale Agreement (Williams Communications Group Inc)
Interim Operations of the Business. From Sellers covenant and agree that, after the date hereofof this Agreement and prior to the Closing, subject to the Sellers shall conduct Bankruptcy Exceptions and except as (i) provided in Section 2.15 or set forth in Section 6.5 of the Disclosure Memorandum, (ii) expressly provided in or as a result of the consummation of this Agreement, (iii) provided in the DIP Financing Agreements, (iv) ordered by the Bankruptcy Court or (v) may be agreed in writing by Purchaser:
(a) the Business shall be conducted in the Ordinary Course of Business in compliance with the Applicable Requirements and Sellers shall, and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and each Affiliate Seller to, use their commercially reasonable efforts to preserve intact the Purchased Assets Business organization and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear exceptedongoing operations, including by applying any available insurance proceeds received directly and specifically with respect to the relationships between and among such assets to replace or repair any such assetsSeller and its Affiliates and AFI and its Affiliates, keep available the services of the current officers and employees of the Business and maintain the existing relationships with customers, suppliers, creditors, business organizations partners and relationships with employees and third parties others having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidationSellers and Affiliate Sellers shall (i) maintain the Purchased Assets in good repair and condition (subject to normal wear and tear); (ii) pay all Taxes, dissolutionaccounts payable and other expenses with respect to the Business and the Purchased Assets as they become due and payable; (iii) maintain proper business and accounting records relative to the Business, restructuring, merger, consolidation, recapitalization or other reorganization of any consistent with past practice; and (iv) maintain commercially reasonable procedures for protection of the Purchased EntitiesTransferred Intellectual Property;
(c) Sellers and Affiliate Sellers shall not (i) issuemodify or amend, sellor release, transferassign or waive any material rights or claims under, pledgeor materially accelerate or delay the performance under, dispose of any Assumed Contract; provided, however, Sellers and Affiliate Sellers may modify or encumber amend any Assumed Contract that is not material to the Equity Interests or any shares of capital stock of the Purchased EntitiesBusiness (other than a Servicing Agreement), following commercially reasonable efforts to provide notice and consult with Purchaser regarding such action, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on Related to the Business taken as a wholethat, or grant or make a legally binding promise for, if any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering had entered into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser such Contract immediately prior to the date of this Agreement, would be a Material Contract or a Servicing Agreement; provided that (w) Sellers may enter into customary insurance Contracts, including director and officer liability insurance; (x) provided there is no adverse impact to the Business, Sellers may reduce or limit the services that are provided to them by AFI and its Affiliates as part of their management of their estates in the Bankruptcy Case; (y) if any owner of Servicing Rights other than Sellers transfers such Servicing Rights in accordance with their Servicing Agreements, Sellers may take all actions reasonably required by the applicable Servicing Agreements in connection with such transfer; and (z) Sellers may enter into Real Property Leases for executive office space for which the monthly lease payment does not exceed $5,000; provided that Purchaser shall have the right to exclude any such Real Property Lease from the Assumed Contracts and the Purchased Assets at the Closing. For the avoidance of doubt, nothing in this Agreement shall prevent Sellers from engaging in loss mitigation activities, including hiring and terminating counsel therefor even if such Contract may be or become a Material Contract, defending and/or settling routine litigation matters, or making payments to former mortgagors pursuant to the Consent Order or from offering and effecting refinancing of or modifications to Mortgage Loans as required by the terms of the DOJ/AG Settlement, or by HAMP, HARP, HASP or any similar program that the Sellers have or may develop in the Ordinary Course of Business; provided that Sellers shall promptly provide copies to Purchaser of any reports provided under the DOJ/AG Settlement to the monitor appointed to oversee Sellers’ compliance with the DOJ/AG Settlement with respect to such agreements, arrangements and actions;
(d) Sellers and Affiliate Sellers shall not transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon, subject to any Lien (other than Permitted Liens) or allow to lapse or expire, permit the destruction of, or material damage or loss to, or otherwise dispose of any of the Purchased Assets, other than immaterial amounts of personal property sold or otherwise disposed for fair value in the Ordinary Course of Business;
(e) Except as would not give rise to any Assumed Liabilities, Sellers and Affiliate Sellers shall not (i) incur Liabilities, expenses, Indebtedness or other obligations Related to the Business except in the Ordinary Course of Business or (ii) enter into any new line Contract to incur, assume or guarantee any Indebtedness other than the DIP Financing Agreements;
(f) Sellers and Affiliate Sellers shall not cancel any debts or waive any material claims or rights (including the cancellation, compromise, release or assignment of businessany Indebtedness owed to, or claims held by, any of Seller and its Subsidiaries) that constitute Purchased Assets except as required by the Consent Order, the DOJ/AG Settlement or the programs referenced in clause (c) above;
(g) Sellers and Affiliate Sellers shall not terminate or permit to lapse any material Permits that are necessary for the operation of the Business;
(h) Sellers and Affiliate Sellers shall not make any capital expenditure Related to the Business, including acquiring, leasing or licensing or creating or permitting to exist any Lien other than a Permitted Lien on any assets or property that are Purchased Assets or making any investment in, or making any loan or capital contribution to, any Person, in each case with a value in excess of $500,000 individually or $5 million in the aggregate;
(i) Sellers and Affiliate Sellers shall not (A) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date); provided, that if any such changes are required, the Sellers shall promptly provide written notice to Purchaser with respect thereto, or (B) materially write-up, write-down or write-off the Book Value of any Purchased Asset except as required by GAAP;
(j) Sellers and Affiliate Sellers shall not with respect to the Purchased Assets, make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes or otherwise, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as required by Law or GAAP;
(k) Sellers and Affiliate Sellers shall not change their servicing practices in any material respect, except as required by Applicable Law, the Consent Order or the DOJ/AG Settlement; for the avoidance of doubt, an Investor’s change to its delegated authority matrix under a Servicing Agreement shall not be or be deemed a material change;
(l) Sellers shall not (1) reject or terminate any Assumed Contract or seek Bankruptcy Court approval to do so or (2) fail to use commercially reasonable efforts to oppose any action by a third party to terminate (including any action by a third party to obtain Bankruptcy Court approval to terminate) any Assumed Contract other than notices of termination set forth in Schedule 4.9; provided that, prior to the Closing Date, Sellers may reject or terminate any Assumed Contract (other than any Servicing Agreement) that is both not material to the Business and is readily replaceable (and so replaced) at not more than the same cost, without disruption to the operation of the Business and otherwise on terms and conditions consistent with such rejected or terminated Assumed Contract, following commercially reasonable efforts to consult with Purchaser regarding such rejection or termination;
(m) With respect to any Purchased Asset, Sellers shall not, and shall use their best efforts to ensure that any Affiliates shall not: (1) agree to allow any form of relief from the automatic stay in the Bankruptcy Case except in accordance with the provisions of the Order Pursuant to Bankruptcy Code Sections 105(a) and 362(d) for Entry of an Order Approving Procedures by Which Third Parties May Request and Obtain Stipulated Relief from the Automatic Stay to Commence or Continue Actions to Foreclose Senior Liens [Dkt. # 1824]; provided, however, that Sellers shall obtain an amendment of such order on or before the date of the Sale Hearing designating Purchaser as a Notice Party (as defined therein) and providing that the Purchaser is entitled to all of the rights of a Notice Party thereunder, and pending the entry of such amended order, Sellers shall treat the Purchaser as a Notice Party and shall stipulate to Purchaser’s exercising all rights in accordance therewith; and (2) fail to use commercially reasonable efforts to oppose any action by a third party to obtain relief from the automatic stay in the Bankruptcy Case; (3) reject, or agree to a rejection of, any Assumed Contract except as provided in the proviso in clause (l) above and in Section 2.15(c); or (4) fail to use commercially reasonable efforts to oppose any action by a Person (other than Purchaser) seeking to have an Assumed Contract rejected, except as provided in the proviso in clause (l) above; for the avoidance of doubt, this clause (m) does not apply to (y) notices of termination of any Assumed Contract (as set forth in Schedule 4.9) in accordance with their terms received prior to the Petition Date so long as the Sellers do not have the contractual right to cure or remedy the basis for the notice of termination or (z) expirations of any Assumed Contracts in accordance with their terms;
(n) take Sellers and Affiliate Sellers shall not take, or agree to or commit to take, any action that would or omit is reasonably likely to result in any of the conditions set forth in Article VIII, not being satisfied, or would make any representation or warranty of Sellers contained herein inaccurate in any material respect at, or as of any time prior to, the Closing Date or that would materially impair the ability of Sellers or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
(o) Sellers and Affiliate Sellers shall not amend any of their Organizational Documents or enter into or amend any limited liability company, joint venture, partnership, strategic alliance, stockholders’ agreement, co-marketing, co-promotion, joint development, operating agreement or similar arrangement Related to the Business or with respect to the Purchased Assets;
(p) Sellers and Affiliate Sellers shall not (i) transfer the employment of any individual not providing services Related to the Business as of the date of this Agreement to a role in which he or she will provide services Related the Business; or (ii) cause any employee who provides services Related to the Business as of the date of this Agreement to cease to provide services Related to the Business, if either of the foregoing shall unreasonably interfere with the Business or Purchaser’s access to employees as reasonably necessary for purposes of making the Employment Offers;
(q) Sellers and Affiliate Sellers shall not modify the base salary, wages, benefits or other compensation of any employee who provides services Related to the Business or take any action that would require disclosure pursuant accelerate, create or increase a right to Section 4.6 payment to any Business Employee under any Plan, other than for increases in base salary or wages in the Ordinary Course of Business;
(r) Sellers and Affiliate Sellers shall not (i) enter into or amend any employment, change in control, retention, severance or similar agreement with respect to any individual who provides services Related to the Business, (ii) adopt, amend or terminate any Plan (or any plan, program, agreement, or agreement that would be a Plan if each representation and warranty contained therein were remade in effect as of the time date of such action this Agreement), other than to comply with law, or omission; or(iii) enter into any collective bargaining or similar agreement;
(os) authorizeExcept in connection with the Bankruptcy Case, Seller shall not pay, discharge, settle or otherwise satisfy any Liabilities (i) with any third party (other than a Government Entity) involving an amount greater than $100,000, or agree (ii) with any Government Entity involving an amount greater than $100,000 unless such settlement does not impose restrictions materially more onerous than any similar settlement between such Government Entity and two or commit more of the top ten mortgage servicers in the United States (based on unpaid principal balance serviced, as determined by Inside Mortgage Finance for 2011); provided that this clause (s) does not apply to dopayments made pursuant to Sellers’ Contracts in the Ordinary Course of Business, whether which includes payments of servicing error claims provided that in writing or otherwiseconnection with any such payment of servicing error claims, the Sellers receive a full release of all such claims and there is no ongoing effect on the operations of the Business;
(t) Sellers and Affiliate Sellers shall not accelerate the rate of collection of accounts receivable Related to the Business other than in the Ordinary Course of Business and in accordance with acceptable servicing practices; and
(u) With respect to clauses (c)-(t), Sellers and Affiliate Sellers shall not enter into any Contract to do any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Walter Investment Management Corp), Asset Purchase Agreement (Ocwen Financial Corp)
Interim Operations of the Business. From Loral Space, Loral Holdings and each of the Subsidiaries covenants and agrees that, after the date hereofhereof and prior to the Closing, unless Globalstar shall otherwise approve in writing and except as otherwise expressly contemplated by this Agreement or as required by applicable laws or regulations, the Sellers Business shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only be conducted in the ordinary and usual course consistent with past practice and the Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with governmental authorities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the Purchased Assets and the assets services of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with present employees and third parties having material business dealings with agents of the Business or the Purchased EntitiesBusiness. Without limiting the generality of the foregoingforegoing and in furtherance thereof, from the date of this Agreement until the Closing, except (wA) as otherwise expressly required by this Agreement Agreement, (B) as Globalstar may approve in writing, (C) as Loral Space, at its sole discretion, may deem necessary or convenient to settle, pay or deal with existing liabilities of the Subsidiaries (including the Loral Liabilities and the Loral Tax Liabilities), so long as such settlements (i) are the financial responsibility of Loral Space pursuant to Section 12(a) hereof or otherwise and (ii) could not reasonably be expected to materially adversely affect the Assets or the Ancillary Agreements operation of the Business following the Closing, or (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (zD) as set forth on in Section 6.1 7(a) of the Seller Disclosure Schedule, from and neither Loral Holdings nor any Subsidiary will, directly or indirectly, take any action described in Section 3(q) hereof. In addition, without limiting the generality of the foregoing, within five business days after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities;
(c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date signing of this Agreement, LDG shall pay (or enter into shall cause the Operating Subsidiary to pay) to Globalstar an amount (the “Satellite Service Fee Interim Payment”) equal to (x) all amounts then owed under the Satellite Services Agreement after giving effect to all and any new line discounts, rebates and deductions granted to LDG by Globalstar (which discounts, rebates and deductions shall be no less than those accorded by Globalstar to other independent gateway operators) less (y) US$500,000, and LDG shall thereafter pay (or cause the Operating Subsidiary to pay) to Globalstar all amounts owed under the Satellite Services Agreement as they come due after giving effect to all and any discounts, rebates and deductions granted to LDG by Globalstar (which discounts, rebates and deductions shall be no less than those accorded by Globalstar to other independent gateway operators) (the “Satellite Service Fee Current Payments”). The parties agree that the amount of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade the Satellite Service Fee Interim Payment as of the time of such action or omission; or
(o) authorizeOctober 31, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities2007 is US$290,407.89.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (Globalstar, Inc.), Partnership Interest Purchase Agreement (Loral Space & Communications Inc.)
Interim Operations of the Business. From and after Except (i) as otherwise contemplated by this Agreement, (ii) as disclosed on Schedule 7.1 or (iii) with the date hereofprior written approval of the Purchasers (which shall not be unreasonably withheld, conditioned or delayed), the Parent and the Sellers shall conduct covenant that until the Closing they will continue to operate the Business and shall cause the Purchased Entities to conduct their respective businesses only in all material respects in the ordinary course consistent with past practice practices of the Business, and use their commercially reasonable efforts to maintain and preserve intact the Purchased Assets Business and its relationships with suppliers, customers, employees and others having business relationships with the Business. Until the Closing Date, the Parent and the assets Sellers shall not, without the prior written approval of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing Purchasers (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) except as set forth contemplated by this Agreement or as described on Section 6.1 of the Disclosure ScheduleSchedule 7.1, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt Sell, buy, transfer, lease or otherwise dispose of or acquire any change material Purchased Assets, other than the sale or purchase of inventory, supplies and services in the respective certificates ordinary course of incorporation or bylaws or other similar organization or governing documents of the Purchased Entitiesbusiness consistent with past practices;
(b) adopt a plan Modify, amend (other than such modifications or agreement of complete amendments that are immaterial or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization ministerial) or other reorganization of terminate any of the Purchased EntitiesMaterial Agreements or Parent Benefit Plans;
(c) (i) issue, sell, transferEncumber by mortgage, pledge, dispose lien or otherwise (not including licenses of or encumber grants of rights to use Intellectual Property in the Equity Interests or any shares of capital stock of the Purchased Entitiesordinary course and consistent with past practices), or (ii) grant any option, warrant security interest in or other right to purchase or obtain, or otherwise dispose of or encumberto, any of the equity securities of the Purchased EntitiesAssets, except for Permitted Liens;
(d) declare, set aside Lease or pay dispose of any dividend material interest in the Owned Real Property or other distribution other than in each case for cashthe Leased Real Property;
(e) enter into With respect to the Business, or consummate any transaction involving the acquisition employees of the business Business, adopt or stock amend any employee benefit plan or enter into, adopt, extend, renew or amend any collective bargaining agreement or other Material Contract with any labor organization, union or association, except in each case as required by applicable Law;
(or, f) With respect to the extent constituting a going concern businessBusiness, assets grant to any employee of the Sellers any increase in compensation or other properties) of any other Person (other than purchases of inventory and capital equipment benefits, except in the ordinary course of business consistent with past practice, subject to clause (n) below)or enter into any employment, retention, severance or bonus agreements with any employees of the Sellers;
(fg) sellCancel any Indebtedness, assignother than any intercompany Indebtedness, leaseowed to the Business or waive any claims or rights of substantial value to the Business;
(h) With respect to the Business, license, transfer enter into any contract or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory agreement not in the ordinary course of business consistent with past practice;
(gi) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist Settle any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in litigation matter, proceeding or dispute with respect to the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material ContractBusiness;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits With respect to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United StatesBusiness, to the extent required by applicable Lawsadopt a plan of complete or partial liquidation, in the ordinary course of business consistent with past practicedissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(k) change Change, in a matter adverse to the material terms Purchasers, the Business’s policies and conditions procedures regarding the timing of their business relationships with Key Customers (i) collecting accounts receivable or Key Suppliers other than in the ordinary course of business;(ii) paying accounts payable; or
(l) terminate Enter into any agreement, contract, commitment or close arrangement to do any facility, other than periodic shutdowns in of the ordinary course of businessforegoing, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, recommend, propose or agree or commit announce an intention to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 1 contract
Interim Operations of the Business. From and after During the period from the ---------------------------------- date hereofof this Agreement to the Closing Date or the earlier termination of this Agreement, the Sellers shall will conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary and normal course consistent with past practice and use their commercially reasonable efforts to preserve intact practice, will make no material changes in the Purchased Assets and the assets operations of the Purchased Entities (in each caseBusiness and will not, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or unless Purchaser gives its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
prior written approval: (a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities;
(c) (i) issue, sell, transfer, pledge, dispose of of, hypothecate or encumber the Equity Interests or any shares of capital stock of the Purchased Entitiesencumber, or (ii) grant any optionagree to sell, warrant or other right to purchase or obtainpledge, or otherwise dispose of of, hypothecate or encumber, any of the equity securities Assets of the Purchased Entities;
(d) declareBusiness, set aside or pay negotiate with or solicit any dividend or other distribution other than in each case for cash;
(e) enter into or consummate interest from any transaction involving the acquisition of the business or stock (or, third party with respect to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entitiessame, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement authorize or make any layoff capital expenditures relating to the Business; (b) acquire (by merger, consolidation, or acquisition of employees stock or assets) any corporation, partnership or other business organization or division thereof which is engaged in the Business; (c) permit to lapse or expire without renewal any present policies of insurance relating to the Assets; (d) enter into any contract or agreement relating to the Assets, without Purchaser's prior consent, such consent not to be unreasonably withheld, maintain or cause or permit to be maintained any of the Assets in a manner below industry standards or permit any of the Assets to remain in a state of repair that would implicate the WARN Act;
is below industry standards, (mf) incur agree or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available foregoing; or (g) take any action which would cause any of the representations and warranties of Sellers contained herein not to Purchaser prior to be true and correct at any time. Furthermore, during the period from the date of this Agreement to the Closing Date or the earlier termination of this Agreement, PSI shall conduct its business in the ordinary and usual course, and will not (a) acquire any material additional assets other than parts and components necessary to complete the Units In-Production, without Purchaser's prior consent, or enter into (b) increase the compensation of any new line employee or hire additional employees except in the ordinary course of business;
(n) take any action or omit business in accordance with past practice. Further, S&S and PSI will use reasonable efforts in the ordinary course the Business to take any action that would require disclosure pursuant preserve and keep intact the employee work force relating to Section 4.6 if each representation the Business, and warranty contained therein were remade as to preserve for Purchaser the goodwill of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash customers having business relations with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased EntitiesPSI.
Appears in 1 contract
Interim Operations of the Business. From Prior to the Closing, except as otherwise expressly provided herein, Seller and after the date hereof, the Sellers shall Company shall:
(a) conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice same manner as heretofore conducted, and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets business organization of the Purchased Entities (in each caseCompany intact, tangible keep available the services of the Employees and intangible)maintain the existing relations with franchisees, ordinary wear and tear exceptedcustomers, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assetssuppliers, creditors, business organizations partners, Employees and relationships with employees and third parties others having material business dealings with the Business or Company, to the Purchased Entities. Without limiting end that the generality goodwill and ongoing business of the foregoingCompany shall be unimpaired at the Closing Date;
(b) not authorize for issuance, except issue or deliver any additional shares of capital stock or securities convertible into or exchangeable for shares of capital stock, or issue or grant any right, option or other commitment for the issuance of shares of capital stock or of such securities, or split, combine or reclassify any shares of its capital stock;
(wc) as otherwise expressly required by this Agreement not amend or modify the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell charter, bylaws or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 similar document of the Disclosure ScheduleCompany;
(d) not, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take institute any new methods of the following actions:
(a) adopt any change in the respective certificates of incorporation product development, purchase, sale, lease, management, accounting or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities;
(c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution operation other than minor changes consistent with prudent business practice or engage in each case for cashany transaction or activity outside the ordinary course of business;
(e) enter into or consummate any transaction involving with respect to the acquisition Business, (i) maintain the books, records and accounts of the Company in accordance with prudent business or stock practices and consistent with past practices, (orii) file, on a timely basis, with the appropriate Governmental Authorities all Tax Returns required to be filed and pay all Taxes due prior to the extent constituting a going concern businessClosing Date and (iii) maintain, preserve and protect all of the assets of the Company in the condition in which they exist on the date hereof, except for ordinary wear and tear;
(f) not permit the Company to modify, amend, terminate, or other properties) of renew any other Person (other than purchases of inventory and capital equipment Contract, except in the ordinary course of business consistent with past practicebusiness, subject or waive, release or assign any material right or claim, in each case to clause (n) below)the extent that such waiver, release or assignment relates to the Business;
(fg) sellnotify Buyer prior to the Business entering into any new Contract, assign, lease, license, transfer or otherwise dispose except in the ordinary course of business;
(h) not permit the Company to enter into any material amount commitment or transaction outside of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(gi) mortgage or pledge not permit the Company to make any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer distributions to exist any material Encumbrance thereupon (Seller other than Permitted Encumbrances);
(h) other than payment of salary in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contractbusiness consistent with past practices;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements maintain supplies and inventory at levels that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, are in the ordinary course of business consistent with past practice;
(k) change the material terms continue to extend customers credit, collect accounts receivable and conditions of their business relationships with Key Customers or Key Suppliers other than pay accounts payable and similar obligations in the ordinary course of businessbusiness consistent with past practice;
(l) terminate not permit any insurance policy or close any facilitybinder pertaining to the Business to be canceled or terminated without notice to Buyer, other than periodic shutdowns except policies that are replaced without diminution or gaps in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Actcoverage;
(m) incur not permit the Company to settle any pending litigation or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior claim relating to the date of this Agreement, or enter into any new line of businessBusiness;
(n) not permit the Company to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization that is inconsistent with the Transaction;
(o) not permit the Company to make any material election with respect to Taxes, change any currently or previously effective election relating to Taxes, adopt or change any accounting method (except as required by Law or GAAP), whether or not relating to Taxes, enter into any closing agreement relating to Taxes, settle or consent to any claim or assessment relating to Taxes, waive the statute of limitations for any such claim or assessment, or file any amended Tax Return or claim for refund of Taxes;
(p) not permit the Company to take, or agree to or commit to take, any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in ARTICLE 8 not being satisfied, or would make any representation or warranty of Seller contained herein untrue in any respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of the Company, Seller or Buyer to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
(q) not permit the Company to take any action (or omit to take any action action) that would require disclosure pursuant have or reasonably be expected to Section 4.6 if each representation and warranty contained therein were remade result have, individually or in the aggregate, a Material Adverse Effect;
(r) not permit the Company to enter into any negotiation with respect to, or adopt or amend in any respect, any collective bargaining agreement relating to the Business;
(s) except as may be required under any existing agreement or by Law, not permit the Company to grant or agree to grant any bonuses to any employee employed in the conduct of the time Business, nor shall the Company increase the rates of such action salaries or omissioncompensation of the employees employed in the conduct of the Business or increase or provide any new pension, retirement or other employment benefits to any of the Employees, other than general increases made in accordance with the Company’s past practices;
(t) cooperate in good faith with Buyer in communicating with the Employees regarding the Transaction;
(u) operate the Business in compliance with all Laws;
(v) use commercially reasonable efforts to preserve and protect all Permits; or
(ow) permit the Company to enter into any agreement, contract, commitment or arrangement to do anything that it is prohibited from doing pursuant to this Section 6.02 and shall not authorize, recommend, propose or agree or commit announce an intention to do, whether in writing or otherwise, any of the foregoing. Notwithstanding do anything herein that it is prohibited from doing pursuant to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiesthis Section 6.02.
Appears in 1 contract
Samples: Stock Purchase Agreement (Photonic Products Group Inc)
Interim Operations of the Business. From Seller covenants and agrees that, after the date hereof, hereof and prior to the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoingClosing Date, except (wi) as otherwise expressly required by provided in this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2)Agreement, (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (zii) as set forth on Section 6.1 of in the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsor (iii) as may be agreed in writing by Purchaser:
(a) adopt any change the Business shall be conducted in the respective certificates same manner as heretofore conducted and in the Ordinary Course of incorporation or bylaws or other similar Business, and each of Seller and the Seller Subsidiaries shall use reasonable best efforts to preserve the organization or governing documents of the Purchased EntitiesBusiness intact, except with the written consent of Purchaser not to be unreasonably withheld, keep available the services of the current officers and employees of the Business and maintain the existing relations with OEMs, distributors and other resellers, customers, suppliers, creditors, business partners and others having significant business dealings with the Business. The Business shall not institute any new methods of manufacture, purchase, sale, lease, management, accounting or operation;
(b) Seller shall: (i) take all action reasonably required to preserve and protect the Seller Intellectual Property; and (ii) use commercially reasonable efforts to (A) maintain the books, records and accounts of the Business in the usual, regular and Ordinary Course of Business on a basis consistent with Seller’s past practice and in accordance with GAAP; and (B) maintain, preserve and protect all of the Assets in the condition in which they exist on the date hereof, except for ordinary wear and tear;
(c) Seller shall not modify, amend or terminate any of its leases or material contracts in any material respect or in any manner adverse to Seller or Purchaser, or waive, release or assign any material rights or claims, to the extent included in the Assets, except in the Ordinary Course of Business;
(d) Seller shall not enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate), other than in the Ordinary Course of Business, except as contemplated by this Agreement;
(e) Seller shall not lease, license, mortgage, pledge or encumber any Assets other than in the ordinary and usual course of business, consistent with Seller’s past practice, or transfer, sell or dispose of any Assets other than in the Ordinary Course of Business, or dispose of or permit to lapse any rights to any Intellectual Property (other than Off-the-Shelf Software which does not affect the ability of Seller to conduct the business as presently conducted);
(f) Seller shall not make any increase in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants (other than normal recurring increases in the Ordinary Course of Business of wages payable to employees who are not officers or directors or Affiliates of Seller) or to Persons providing management services, or enter into or amend any employment, severance, consulting, termination or other agreement with or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants other than in the Ordinary Course of Business and not in excess of $5,000;
(g) Seller shall not (i) adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any director, officer, employee, agent or consultant, whether past or present, except as required by Applicable Law to the extent Seller or a Seller Subsidiary is unconditionally obligated to do so on the date hereof or as required pursuant to the terms of any such plan for participants following the date hereof, or (ii) amend in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing, except as required by Applicable Law;
(h) Seller shall not permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Purchaser, except policies which are replaced without diminution of or gaps in coverage;
(i) except to comply with existing contractual obligations or commitments, Seller shall not enter into any contract or transaction relating to the purchase of assets other than in the Ordinary Course of Business;
(j) Seller shall not pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Financial Statements or incurred since the Balance Sheet date in the Ordinary Course of Business (taking into account the planned dissolution of Seller);
(k) Seller shall not, and shall cause each of the Acquired Subsidiaries or Foreign Subsidiaries from whom Assets will be acquired pursuant to the Purchase Option not to, adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, restructuring, recapitalization or other reorganization without the written consent of any of the Purchased Entities;
(c) (i) issuePurchaser, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) not to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of businessunreasonably withheld;
(l) terminate Seller shall not, and shall cause each Seller Subsidiary not to (i) change in any material respects any of the accounting methods used by it unless required or close permitted by GAAP or (ii) make any facilityelection relating to Taxes, other than periodic shutdowns in change any election relating to Taxes already made, adopt any accounting method relating to Taxes, change any accounting method relating to Taxes unless required by GAAP, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the ordinary course statute of business, limitations for any such claim or implement any layoff of employees that would implicate the WARN Actassessment;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available Seller shall deliver to Purchaser at or prior to the date of this AgreementClosing a certificate, or enter into any new line of businessin form and substance reasonably satisfactory to Purchaser and consistent with Treasury Regulation Section 1.897-2(h), certifying that the Acquisition is exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act;
(n) take Seller shall deliver to Purchaser a complete and accurate list setting forth the following information as of March 31, 2003, with respect to the Acquired Subsidiaries: (i) the basis of each Acquired Subsidiary in its respective assets (including any action intangible assets), (ii) the amount of any net operating losses, net capital losses, unused investment or omit other credits, unused foreign Tax, or excess charitable contributions of the Acquired Subsidiaries, and any limitations thereon, and (iii) the amount of any deferred gain or loss allocable to take the Acquired Subsidiaries arising out of any prior intercompany transaction;
(o) Seller shall not, and shall cause each of the Seller Subsidiaries not to, take, or agree to or commit to take, any action that would require disclosure pursuant or is reasonably likely to Section 4.6 if each result in any of the conditions to the Closing set forth in Article VIII not being satisfied, or would make any representation and or warranty of Seller contained therein were remade herein inaccurate in any material respect at, or as of any time prior to, the time Closing Date, or that would materially impair the ability of Seller or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such action or omissionconsummation; orand
(op) authorizeSeller shall not, and shall cause each of the Seller Subsidiaries not to, enter into any agreement, contract, commitment or agree or commit arrangement to do, whether in writing or otherwise, do any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 1 contract
Interim Operations of the Business. From and after Prior to the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoingClosing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsprovided herein Seller shall:
(a) adopt any change in maintain the respective certificates corporate existence of incorporation or bylaws or other similar organization or governing documents of the Purchased EntitiesSeller;
(b) adopt a plan or agreement conduct the Product Business in the same manner as heretofore conducted, including by continuing performance of complete or partial liquidationall ongoing clinical and other studies related to the Pipeline Product, dissolutionand maintain the existing relations with franchisees, restructuringcustomers, mergersuppliers, consolidationcreditors, recapitalization or other reorganization of any of business partners and others having business dealings with Seller in connection with the Purchased EntitiesProduct Business;
(c) not institute any new methods of product development, purchase, sale, lease, management, accounting or operation other than minor changes consistent with prudent business practice;
(i) issuemaintain the books, sellrecords and accounts of Seller consistent with past practices,
(ii) file, transferon a timely basis, pledgewith the appropriate Governmental Authorities all Tax Returns required to be filed and pay all Taxes due prior to the Closing Date and (iii) maintain, dispose of or encumber the Equity Interests or any shares of capital stock preserve and protect all of the Purchased EntitiesAssets in the condition in which they exist on the date hereof, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case except for cashordinary wear and tear;
(e) not modify, amend, terminate, or renew any existing Contract, or enter into any new Contract, except as consented to by the Company in writing, or consummate waive, release or assign any transaction involving the acquisition of the business right or stock (orclaim, in each case to the extent constituting a going concern businessthat such waiver, assets release or other propertiesassignment relates to the Product Business;
(f) notify the Company of any other Person (other than purchases of inventory and capital equipment event or occurrence not in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) not enter into any Material Contract commitment or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee transaction outside of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(g) not permit any insurance policy or binder pertaining to the Product Business to be canceled or terminated without notice to and prior consent of the Company, except policies that are replaced without diminution or gaps in coverage;
(h) not settle any pending litigation or claim relating to the Product Business;
(i) not institute any bankruptcy, insolvency, or similar proceedings that would affect the Product Business or the Purchased Assets;
(j) not take any action that is inconsistent with the transactions contemplated by this Agreement;
(k) not take, or agree to or commit to take, any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in this Agreement not being satisfied, or that would make any representation or warranty of Seller contained herein untrue, misleading or false in any respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of Seller to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
(l) terminate not take any action (or close omit to take any facilityaction) that would have or reasonably be expected to result in, other than periodic shutdowns individually or in the aggregate, a material adverse effect on Seller, the Pipeline Product or the Product Business;
(m) except as may otherwise be consented to by the Company, not hire or enter into any new contractual relationship with any employee or potential employee;
(n) operate the Product Business in compliance with all Laws;
(o) preserve and protect all Permits and all Intellectual Property Rights pertaining to the Product Business;
(p) not assume, incur or guarantee any Indebtedness or modify the terms of any existing Indebtedness, and not mortgage, pledge or permit to become subject to Encumbrances any Purchased Assets;
(q) not make any loans, advances or capital contributions to, or investments in, any Person, and not cancel and debts or waive any claims or rights of substantial value related to, or in connection with, the Product Business;
(r) not make any capital expenditure, or commit to make any capital expenditure, or acquire any assets, properties or rights;
(s) not, without the prior consent of the Company, make any filings or registrations related to the Product Business, with any Governmental Authority, except routine filings and registrations made in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;; and
(mt) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or not enter into any new line of business;
(n) take any action agreement, Contract, commitment or omit arrangement to take any action that would require disclosure do anything prohibited pursuant to this Section 4.6 if each representation 7.1 and warranty contained therein were remade as of the time of such action or omission; or
(o) not authorize, recommend, propose or agree or commit announce an intention to do, whether in writing or otherwise, any of the foregoing. Notwithstanding do anything herein prohibited pursuant to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiesthis Section 7.1.
Appears in 1 contract
Samples: Transaction Agreement
Interim Operations of the Business. From Seller hereby covenants and after agrees that between the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets hereof and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsClosing Date:
(a) adopt Seller shall conduct its business diligently and in the ordinary course and in accordance with past practice, and use its best efforts to (i) preserve its business organization intact, and (ii) keep available the services of its present employees.
(b) Seller shall not mortgage or encumber any Asset.
(c) All Assets shall be used, operated, maintained and repaired in accordance with normal and prudent business practices.
(d) Seller shall use its best efforts to preserve Seller's relationships and goodwill with its customers, suppliers, licensors and others having business relationships with Seller.
(e) Seller shall (i) maintain all Assets in substantially the same condition as they are now (reasonable wear and tear, which are not such as to adversely affect the operation of its business, excepted), (ii) maintain insurance upon the Assets and with respect to the conduct of the business, all such insurance to be comparable in amount, scope and coverage to that in effect on the date of this Agreement, and (iii) give Purchaser immediate written notice of any material damage to Seller's Assets by fire or other casualty.
(f) Seller shall maintain its books, records and accounts in the usual, regular and ordinary manner, on a basis consistent with prior periods, and shall not make any changes in the accounting methods or practices followed by Seller or any change in the respective certificates depreciation or amortization policies or rates theretofore adopted or applied.
(g) Seller shall duly comply with all laws applicable to it, the Assets and the conduct of incorporation its business.
(h) Seller shall perform all of its obligations without default.
(i) Seller shall not grant any power of attorney with respect to its business or bylaws the Assets.
(j) Without the prior written consent of Purchaser, Seller shall not enter into any new material contracts or other similar organization agreements, or governing documents cancel, amend, modify adversely, waive any material rights under, assign, encumber or terminate any of the Purchased Entities;existing contracts or agreements.
(bk) adopt a plan Seller shall not, directly or agreement of complete indirectly, sell, lease or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization otherwise dispose of any of the Purchased Entities;
(c) (i) issueAssets or make any capital expenditures, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment except in the ordinary course of business and consistent with the past practicepractices of Seller, subject to clause (n) below);or acquire any other business.
(fl) sellSeller shall not increase the compensation payable or to become payable to any employee, assign, lease, license, transfer officer or otherwise dispose director of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;Seller.
(gm) mortgage Seller shall not write-down, cancel or pledge forgive, in full or in part, any of the material assets of the Purchased Entities, tangible or intangibleaccounts receivable of, or create or suffer loans payable to exist any material Encumbrance thereupon (Seller, other than Permitted Encumbrances);
(h) other than those involving Alanco or in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;.
(n) take Seller will not engage in any action transaction which would be inconsistent with any representation, warranty or omit to take covenant of Seller set forth herein or which would cause a breach of any action that would require disclosure pursuant to Section 4.6 if each representation and such representation, warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiescovenant.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alanco Environmental Resources Corp)
Interim Operations of the Business. From Seller hereby covenants and after agrees that between the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets hereof and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsClosing Date:
(a) adopt any change Seller shall conduct its business diligently and in the respective certificates ordinary course and in accordance with past practice, and use its best efforts to (i) preserve its business organization intact, and (ii) keep available the services of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;its present employees.
(b) adopt a plan Seller shall not mortgage or agreement encumber any Asset.
(c) All Assets shall be used, operated, maintained and repaired in accordance with normal and prudent business practices.
(d) Seller shall (i) maintain all Assets in substantially the same condition as they are now (reasonable wear and tear, which are not such as to adversely affect the operation of complete or partial liquidationits business, dissolutionexcepted), restructuring(ii) maintain insurance upon the Assets and with respect to the conduct of the business, mergerall such insurance to be comparable in amount, consolidationscope and coverage to that in effect on the date of this Agreement, recapitalization and (iii) give Purchaser immediate written notice of any material damage to Seller's Assets by fire or other reorganization casualty.
(e) Seller shall maintain its books, records and accounts in the usual, regular and ordinary manner, on a basis consistent with prior periods.
(f) Seller shall duly comply with all laws applicable to it, the Assets and the conduct of its business.
(g) Without the prior written consent of Purchaser, Seller shall not enter into any new material contracts or agreements, or cancel, amend, modify adversely, waive any material rights under, assign, encumber or terminate any of the existing contracts or agreements.
(h) Seller shall not, directly or indirectly, sell, lease or otherwise dispose of any of the Purchased Entities;
(c) (i) issueAssets or make any capital expenditures, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment except in the ordinary course of business and consistent with the past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose practices of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangibleSeller, or create or suffer to exist acquire any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;.
(i) enter into Seller shall not increase the compensation payable or to become payable to any Material Contract employee, officer or materially amend or modify or terminate any Material Contract;director of Seller.
(j) enter into Seller will not engage in any new benefit transaction which would be inconsistent with any representation, warranty or compensation plancovenant of Seller set forth herein or which would cause a breach of any such representation, program, agreement warranty or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiescovenant.
Appears in 1 contract
Interim Operations of the Business. From Seller covenants and agrees that, after the date hereof, hereof and prior to the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoingClosing Date, except (wi) as otherwise expressly required by provided in this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2)Agreement, (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (zii) as set forth on Section 6.1 of in the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsor (iii) as may be agreed in writing by Purchaser:
(a) adopt any change the Business shall be conducted in the respective certificates same manner as heretofore conducted and in the Ordinary Course of incorporation or bylaws or other similar Business, and each of Seller and the Seller Subsidiaries shall use reasonable best efforts to preserve the organization or governing documents of the Purchased EntitiesBusiness intact, except with the written consent of Purchaser not to be unreasonably withheld, keep available the services of the current officers and employees of the Business and maintain the existing relations with OEMs, distributors and other resellers, customers, suppliers, creditors, business partners and others having significant business dealings with the Business. The Business shall not institute any new methods of manufacture, purchase, sale, lease, management, accounting or operation;
(b) Seller shall: (i) take all action reasonably required to preserve and protect the Seller Intellectual Property; and (ii) use commercially reasonable efforts to (A) maintain the books, records and accounts of the Business in the usual, regular and Ordinary Course of Business on a basis consistent with Seller's past practice and in accordance with GAAP; and (b) maintain, preserve and protect all of the Assets in the condition in which they exist on the date hereof, except for ordinary wear and tear;
(c) Seller shall not modify, amend or terminate any of its leases or material contracts in any material respect or in any manner adverse to Seller or Purchaser, or waive, release or assign any material rights or claims, to the extent included in the Assets, except in the Ordinary Course of Business;
(d) Seller shall not enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate), other than in the Ordinary Course of Business, except as contemplated by this Agreement;
(e) Seller shall not lease, license, mortgage, pledge or encumber any Assets other than in the ordinary and usual course of business, consistent with Seller's past practice, or transfer, sell or dispose of any Assets other than in the Ordinary Course of Business, or dispose of or permit to lapse any rights to any Intellectual Property (other than Off-the-Shelf Software which does not affect the ability of Seller to conduct the business as presently conducted);
(f) Seller shall not make any increase in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants (other than normal recurring increases in the Ordinary Course of Business of wages payable to employees who are not officers or directors or Affiliates of Seller) or to Persons providing management services, or enter into or amend any employment, severance, consulting, termination or other agreement with or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants other than in the Ordinary Course of Business and not in excess of $5,000;
(g) Seller shall not (i) adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any director, officer, employee, agent or consultant, whether past or present, except as required by Applicable Law to the extent Seller or a Seller Subsidiary is unconditionally obligated to do so on the date hereof or as required pursuant to the terms of any such plan for participants following the date hereof, or (ii) amend in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing, except as required by Applicable Law;
(h) Seller shall not permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Purchaser, except policies which are replaced without diminution of or gaps in coverage;
(i) except to comply with existing contractual obligations or commitments, Seller shall not enter into any contract or transaction relating to the purchase of assets other than in the Ordinary Course of Business;
(j) Seller shall not pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Financial Statements or incurred since the Balance Sheet date in the Ordinary Course of Business (taking into account the planned dissolution of Seller);
(k) Seller shall not, and shall cause each of the Acquired Subsidiaries or Foreign Subsidiaries from whom Assets will be acquired pursuant to the Purchase Option not to, adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, restructuring, recapitalization or other reorganization without the written consent of any of the Purchased Entities;
(c) (i) issuePurchaser, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) not to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of businessunreasonably withheld;
(l) terminate Seller shall not, and shall cause each Seller Subsidiary not to (i) change in any material respects any of the accounting methods used by it unless required or close permitted by GAAP or (ii) make any facilityelection relating to Taxes, other than periodic shutdowns in change any election relating to Taxes already made, adopt any accounting method relating to Taxes, change any accounting method relating to Taxes unless required by GAAP, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the ordinary course statute of business, limitations for any such claim or implement any layoff of employees that would implicate the WARN Actassessment;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available Seller shall deliver to Purchaser at or prior to the date of this AgreementClosing a certificate, or enter into any new line of businessin form and substance reasonably satisfactory to Purchaser and consistent with Treasury Regulation Section 1.897-2(h), certifying that the Acquisition is exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act;
(n) take Seller shall deliver to Purchaser a complete and accurate list setting forth the following information as of March 31, 2003, with respect to the Acquired Subsidiaries: (i) the basis of each Acquired Subsidiary in its respective assets (including any action intangible assets), (ii) the amount of any net operating losses, net capital losses, unused investment or omit other credits, unused foreign Tax, or excess charitable contributions of the Acquired Subsidiaries, and any limitations thereon, and (iii) the amount of any deferred gain or loss allocable to take the Acquired Subsidiaries arising out of any prior intercompany transaction;
(o) Seller shall not, and shall cause each of the Seller Subsidiaries not to, take, or agree to or commit to take, any action that would require disclosure pursuant or is reasonably likely to Section 4.6 if each result in any of the conditions to the Closing set forth in Article VIII not being satisfied, or would make any representation and or warranty of Seller contained therein were remade herein inaccurate in any material respect at, or as of any time prior to, the time Closing Date, or that would materially impair the ability of Seller or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such action or omissionconsummation; orand
(op) authorizeSeller shall not, and shall cause each of the Seller Subsidiaries not to, enter into any agreement, contract, commitment or agree or commit arrangement to do, whether in writing or otherwise, do any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entities.
Appears in 1 contract
Interim Operations of the Business. From Except as may be consented to in writing by Xxxxx Parent, or except as specifically contemplated by this Agreement, Trican Parent and after each of the Seller Companies hereby covenants to Xxxxx Parent and Buyer that, during the period commencing on the date hereofof this Agreement and ending on the earlier to occur of (a) the Closing Date or (b) the termination of this Agreement in accordance with Section 8 below (the “Interim Period”), the Sellers Seller Companies shall (i) conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice operate and use their commercially reasonable efforts to preserve intact maintain the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entities;
(c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with the Seller Companies’ past practicepractices and in anticipation of future business prospects (including, subject without limitation, maintaining sufficient inventory and supply levels) and (ii) without limiting the generality of the foregoing, during the Interim Period, the Seller Companies shall:
(a) use commercially reasonable efforts to clause preserve intact the goodwill of the Business and the relationships of Seller Companies with its customers, vendors, suppliers, employees and others having business relations with the Business;
(nb) below)maintain the Books, Records and Files of the Seller Companies and its Affiliates related to the Business in proper order;
(c) continue to make all necessary and material filings and payments with Governmental Authorities in connection with the Business (including all Registered IP) in a timely manner, and use commercially reasonable efforts to maintain in effect all Business Permits, including export and import licenses and other material approvals required for the ongoing operation of the Business as presently conducted;
(d) maintain their currently operating equipment in good working order;
(e) maintain Unutilized Equipment in accordance with the Seller Companies’ Equipment Preservation Program described on Annex VI hereto;
(f) sellpay the accounts payable of the Business in the ordinary course consistent with past practice; or
(g) not, assignin each case, leasewith respect to the Business (other than with respect to actions or matters related to the Excluded Businesses), licenseany Purchased Asset or any Assumed Liability without the written consent of Xxxxx Parent (which consent in the case of clauses (vi) and (viii) below will not be unreasonably conditioned, transfer delayed or withheld):
(i) notwithstanding Section 6.1, transfer, convey or otherwise dispose of any material amount of the Purchased Assets inventory or assets or property of the Purchased Entitiessupply, including sand, except in the ordinary course of business;
(ii) sell, transfer, assign, convey, license (as expressly required pursuant licensor), lease (as lessor) or otherwise dispose of or subject to existing Contracts and sales Encumbrances (other than Permitted Encumbrances), directly or indirectly, any assets constituting any Purchased Assets, other than the sale of services or inventory in the ordinary course of business consistent with the Seller Companies’ past practice;
(giii) mortgage acquire, directly or pledge indirectly (by merger, exchange, consolidation or acquisition of stock or assets or otherwise) or enter any new line of business, any other Person or a material portion of the material assets of any other Person, in each case, if such Person or such assets or line of business, as applicable, as of the Closing would constitute Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances)Assets;
(hiv) amend or modify any, or enter into a new, Stay Bonus Agreement, increase or accelerate the payment of any Business Employee other than in the ordinary course of business, incur consistent with the Seller Companies’ past practice or guarantee grant any Indebtedness, severance or issue termination pay to any note, bond or debt securityBusiness Employee (except in accordance with past severance practice);
(iA) announce or effectuate any actual, contingent or potential reduction in force or other group termination, (B) announce or effectuate any actual, contingent or potential “plant closing” or “mass layoff,” as those terms are defined under WARN, or (C) distribute notices under, or in contemplation of, WARN, contingent or otherwise;
(vi) (A) amend or modify any Material Contract, other than amendments or modifications not adverse in any material respect to the Business or Buyer’s interest in the Purchased Assets or Assumed Liabilities, taken as a whole; (B) voluntarily terminate any Material Contract that has not expired in accordance with its terms; or (C) enter into any Material Contract (or materially amend or modify or terminate make any bid which, if accepted, would result in a Material Contract);
(jvii) terminate the coverage of any Business Insurance Policy, except where such terminated coverage is replaced by comparable coverage;
(viii) pay, release, discharge, settle, compromise or satisfy any Disclosed Claim (A) with a value exceeding $250,000; (B) that would reasonably be expected to adversely affect in any material respect the relationship of any customer or vendor of the Business; or (C) that would reasonably be expected to adversely affect in any material respect the operation of the Business after the Closing;
(ix) make any changes to its accounting principles or practices to the extent applicable to the Business, other than as may be required by current change in the Applicable Accounting Principles or Law;
(x) commit to make any capital expenditure or other purchase of any property, plant, equipment or improvement thereof in excess of $125,000 over the 12-month period following the date hereof, or $500,000 in the aggregate;
(xi) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased EntityAffiliate Transaction, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, (i) in the ordinary course of business consistent with the Seller Companies’ past practice;
, (kii) change with the material terms prior written consent of Xxxxx Parent and conditions which is reasonably necessary to complete the Transaction, or (iii) for the effectuation of their business relationships with Key Customers or Key Suppliers other than the pre-Closing reorganization of Trican U.S. described on Annex VII hereto; provided that in the ordinary course case of business;
clause (l) terminate or close any facilityiii), other than periodic shutdowns concurrently with the effectuation of such pre-closing reorganization, Trican U.S. will deliver to Xxxxx Parent the written consent, in the ordinary course of businessa form reasonably satisfactory to Xxxxx Parent, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to “New LLC” (as defined in Annex VII hereto) approving the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omissionTransaction; or
(oxii) authorize, or agree or commit to do, whether in writing or otherwise, to take any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiesforegoing actions.
Appears in 1 contract
Interim Operations of the Business. From and after the date hereofExcept (i) as expressly provided in this Agreement, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only (ii) as set forth in the ordinary course consistent with past practice Schedules hereto and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (wiii) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities may be consented to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing by the Purchaser Parties (which approval shall such consent not to be unreasonably withheld, conditioned delayed or delayed)conditioned) the Seller Parties shall assure that, (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereofhereof and prior to the Closing Date, the Sellers shall not take any in respect of the following actions with respect to the Textile Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change The Seller Parties shall conduct the Textile Business in the respective certificates of incorporation or bylaws or other similar organization or governing documents of same manner as heretofore conducted and only in the Purchased Entitiesordinary course;
(b) adopt a plan or agreement of complete or partial liquidationAsset Seller and ATPG shall maintain their Properties in good operating condition, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of any of the Purchased Entitiesreasonable wear and tear excepted;
(c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased EntitiesNeither Asset Seller nor ATPG shall take, or (ii) grant any option, warrant agree to or other right commit to purchase or obtain, or otherwise dispose of or encumbertake, any action (or fail to take any action), that would or would be reasonably likely to result in the occurrence of the equity securities any event or matter set forth in Section 9 of the Purchased EntitiesAttachment 4.1 and Section 7 of Attachment 4.2;
(d) declareneither Asset Seller nor ATPG shall take, set aside or pay agree to or commit to take, any dividend action (or other distribution other than fail to take any action) that would or would be reasonably likely to make any representation or warranty of the Seller Parties contained herein or in each case for cashan Ancillary Agreement inaccurate in any material respect at the Closing Date, or that would or would be reasonably likely to impair the ability of the Purchaser Parties or the Seller Parties to consummate the Closing in accordance with the terms hereof or delay such consummation;
(e) neither Asset Seller nor ATPG shall hereafter enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business consistent with past practice, subject to clause (n) below);new foreign exchange hedging Contract; and
(f) sell, assign, lease, license, transfer or otherwise dispose of neither Asset Seller nor ATPG shall enter into any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant Contract to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge do any of the material assets of things described in Subsections (a) through (e) above. Furthermore, Equity Seller shall assure that, after the Purchased Entities, tangible or intangible, or create or suffer date hereof and prior to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Closing Date ATPG shall notify Equity Purchaser prior to the date of this Agreement or by applicable Law; providedmaking any Tax elections, however, that nothing shall consult with Equity Purchaser in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash good faith with respect to thereto and shall in good faith consider any reasonable requests of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased EntitiesEquity Purchaser with respect thereto.
Appears in 1 contract
Interim Operations of the Business. From Except as provided in Schedule ---------------------------------- 8.2, Sunelco hereby covenants and after agrees that between the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets hereof and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsClosing Date:
(a) adopt Sunelco shall conduct its business diligently and in the ordinary course and in accordance with past practice, and use its best efforts to (i) preserve its business organization intact, and (ii) keep available the services of its present employees.
(b) Sunelco shall not mortgage or encumber any Asset.
(c) All Assets shall be used, operated, maintained and repaired in accordance with normal and prudent business practices.
(d) Sunelco shall use its best efforts to preserve Sunelco's relationships and goodwill with its customers, suppliers, licensors and others having business relationships with Sunelco.
(e) Sunelco shall (i) maintain all Assets in substantially the same condition as they are now (reasonable wear and tear, which are not such as to adversely affect the operation of its business, excepted), (ii) maintain insurance upon the Assets and with respect to the conduct of the business, all such insurance to be comparable in amount, scope and coverage to that in effect on the date of this Agreement, and (iii) give Photocomm immediate written notice of any material damage to Sunelco's Assets by fire or other casualty.
(f) Sunelco shall maintain its books, records and accounts in the usual, regular and ordinary manner, on a basis consistent with prior periods, and shall not make any changes in the accounting methods or practices followed by Sunelco or any change in the respective certificates depreciation or amortization policies or rates theretofore adopted or applied.
(g) Sunelco shall duly comply with all laws applicable to it, the Assets and the conduct of incorporation its business.
(h) Sunelco shall perform all of its obligations without default.
(i) Sunelco shall not grant any power of attorney with respect to its business or bylaws the Assets.
(j) Without the prior written consent of Photocomm, Sunelco shall not enter into any new material contracts or agreements, or cancel, amend, modify adversely, waive any material rights under, assign, encumber or terminate any of the existing contracts or agreements.
(k) Sunelco shall not (i) make any loan, or otherwise extend credit to any person, firm or corporation, (ii) give any guarantee or indemnity, or make any other similar commitment with respect to a debt or other similar organization liability of any person, firm or governing documents corporation, or (iii) pay, discharge or satisfy any liability for borrowed money other than the payment, discharge or satisfaction other than in the ordinary and regular course of the Purchased Entities;business.
(bl) adopt a plan Sunelco shall not, directly or agreement of complete indirectly, sell, lease or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization otherwise dispose of any of the Purchased Entities;Assets or make any capital expenditures, except in the ordinary course of business and consistent with the past practices of Sunelco, or acquire any other business.
(cm) Sunelco shall not increase the compensation payable or to become payable to any employee, officer or director of Sunelco.
(n) Sunelco will not authorize or permit (i) the Articles of Incorporation or By-Laws of Sunelco to be amended, (ii) the merger, consolidation or other combination of Sunelco with any other entity, (iii) the character of its business to be changed, (iv) Sunelco to issue, sellsell or deliver, transferor authorize the issuance, pledgesale or delivery of, dispose of or encumber the Equity Interests or redeem, any shares of any class of its capital stock of the Purchased Entitiesor any securities convertible into or exercisable or exchangeable for any such shares, or (ii) grant any optionwarrants, warrant calls, options, stock appreciation rights or other right rights calling for the issuance, sale or delivery of any such shares or convertible, exercisable or exchangeable securities, (v) Sunelco to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution with respect to its capital stock, other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment in the ordinary course of business regularly scheduled dividends consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer practices or otherwise dispose of any material amount of the Purchased Assets redeem or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge repurchase any of the material assets of the Purchased Entities, tangible or intangiblecapital stock, or create or suffer (vi) Sunelco to exist any material Encumbrance thereupon (other than Permitted Encumbrances);organize a Subsidiary.
(ho) Sunelco shall not write-down, cancel or forgive, in full or in part, any accounts receivable of, or loans payable to Sunelco, other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;.
(ip) enter into Sunelco will not engage in any Material Contract transaction which would be inconsistent with any representation, warranty or materially amend covenant of Sunelco set forth herein or modify which would cause a breach of any such representation, warranty or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(l) terminate or close any facility, other than periodic shutdowns in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;
(m) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take any action that would require disclosure pursuant to Section 4.6 if each representation and warranty contained therein were remade as of the time of such action or omission; or
(o) authorize, or agree or commit to do, whether in writing or otherwise, any of the foregoing. Notwithstanding anything herein to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiescovenant.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Photocomm Inc)
Interim Operations of the Business. From and after the date hereofof this Agreement through the Closing Date, subject to Section 3.5 and any limitations imposed on Sellers as a result of their status as debtors-in-possession in the Bankruptcy Cases, including, the exercise of their fiduciary duties to maximize the value of their estates, Sellers shall conduct covenant and agree that, except as expressly provided in this Agreement, required by Applicable Law or as may be agreed in writing by Purchaser, such agreement not to be unreasonably withheld, conditioned or delayed:
(i) the Business and shall cause the Purchased Entities to conduct their respective businesses only be conducted in the ordinary course consistent with past practice and (ii) subject to prudent management of workforce and business needs, each Seller shall use their commercially reasonable best efforts to preserve intact the Purchased Assets and the assets business organization of the Purchased Entities (in each caseBusiness, tangible keep available the services of the current officers and intangible)employees of the Business and maintain the existing relations with customers, ordinary wear and tear exceptedsuppliers, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assetsvendors, creditors, business organizations partners and relationships with employees and third parties others having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actions:
(a) adopt any change in the respective certificates of incorporation or bylaws or other similar organization or governing documents of the Purchased Entities;
(b) adopt a plan or agreement of complete or partial liquidationSellers shall, dissolutionuse reasonable best efforts to, restructuringmaintain, merger, consolidation, recapitalization or other reorganization of any preserve and protect all of the Purchased Entities;
(c) (i) issue, sell, transfer, pledge, dispose of or encumber the Equity Interests or any shares of capital stock of the Purchased Entities, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case for cash;
(e) enter into or consummate any transaction involving the acquisition of the business or stock (or, to the extent constituting a going concern business, assets or other properties) of any other Person (other than purchases of inventory and capital equipment Acquired Assets in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of condition in which they exist on the Purchased Assets or assets or property of the Purchased Entitiesdate hereof, except as expressly required pursuant to existing Contracts for ordinary wear and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage tear and except for replacements, modifications or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) enter into any Material Contract or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than maintenance in the ordinary course of business;
(lc) Sellers shall not, (i) modify, amend, reject, waive any rights under or terminate any Designated Contract (except to the extent required under Section 6.1(d)) or close (ii) waive, release, compromise, settle or assign any facilitymaterial rights or claims related to any Designated Contract;
(d) Subject to Purchaser’s compliance with Section 6.11, Sellers shall use their reasonable best efforts to, prior to or contemporaneously with confirmation of any Plan in the Bankruptcy Cases, obtain authority from the Bankruptcy Court to assume, if necessary pursuant to section 365 of the Bankruptcy Code, the Designated Contracts and assign such Designated Contracts to Purchaser; provided, that the identity of the Designated Contracts subject to assignment pursuant to this Section 6.1(d) shall be determined by Purchaser in its sole discretion;
(e) Sellers shall, and shall use reasonable best efforts to cause Solutions to, make all payments related to Designated Contracts that become or became due or payable pursuant to the terms thereof and promptly pay, as approved and directed pursuant to any Bankruptcy Court order, and on the terms set forth therein, all Cure Amounts due or under any order of the Bankruptcy Court authorizing the assumption and assignment of any such Designated Contract to Purchaser;
(f) Sellers shall not, and shall use reasonable best efforts to cause Solutions not to, (i) enter into, amend, restate or modify, any employment or other agreement with any directors, officers or employees so as to increase the monetary value of the benefits provided thereunder other than periodic shutdowns in accordance with past practice and in no event in an amount exceeding 3% of the current monetary value of the benefits provided thereunder, (ii) make any advance to any directors, officers or employees other than in connection with any employee related travel expenses in accordance with past practice, (iii) alter, commence or terminate any other employment, compensation or employee benefit arrangement outside the ordinary course of business or (iv) hire any individual to be employed by Seller to regularly and consistently provide services to the Business and, except for removals as a result of termination of employment for cause by Sellers, remove any Employees; provided, however, that Seller may hire individuals in the ordinary course of business, or implement any layoff of employees that would implicate business for non-executive positions on the WARN Actsame terms and conditions as similarly situated Employees;
(mg) incur Sellers shall use reasonable best efforts not to take or agree to or commit to assist any capital expenditures materially other Person in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or enter into any new line of business;
(n) take any action or omit to take taking any action that would require disclosure pursuant reasonably be expected to Section 4.6 if each representation and warranty contained therein were remade as result (i) in a failure of any of the time conditions to the Funding or the Closing as set forth in Article VII or (ii) that would reasonably be expected to impair the ability of Sellers or Purchaser to consummate the Funding or the Closing in accordance with the terms hereof or to materially delay such action or omission; orconsummation;
(oh) authorizeTerreStar Networks shall vote their shares in Solutions against any proposal to, enter into, amend, renew, assign, terminate or grant any consent, approval or waiver under any Material Agreement (as defined in the Shareholders Agreement);
(i) Sellers shall use reasonable best efforts to, with respect to the Acquired Assets or the Business, make or authorize (i) any material change to its accounting principles, methods or practices or (ii) any material change to its Tax accounting principles, methods or practices other than, in each case, as required by changes in Applicable Law, or agree GAAP, or commit would not reasonably be expected to doaffect any Tax related to the Acquired Assets after the Closing Date;
(j) no Seller shall, and TerreStar Networks shall vote their shares in Solutions against any proposal to, (i) cause or permit the amendment, restatement or modification of the certificate of incorporation, certificate of formation or bylaws or similar organizational document of itself or any other Seller or Solutions, except as otherwise required by Applicable Law, (ii) effect a split or reclassification or other adjustment of any equity interests of itself or any other Seller or Solutions or a recapitalization thereof, (iii) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any equity interest of itself or any other Seller or Solutions or any equity interest of, or similar interest in, a joint venture or similar arrangement to which a Seller or Solutions is a party which is an Acquired Asset hereunder, (iv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of itself or any other Seller or Solutions or any joint venture or similar arrangement to which a Seller or Solutions is a party which is an Acquired Asset hereunder, (v) declare, set aside or pay any type of dividend, whether in writing cash, stock or otherwiseother property, in respect of any of the foregoing. Notwithstanding anything herein to the contraryequity interests of itself or any other Seller or Solutions, nothing herein shall or shall be deemed to preclude repurchase, redeem or otherwise limit the Sellers acquire or offer to repurchase, redeem or otherwise acquire any such equity interests, or (including the Purchased Entitiesvi) from declaringpropose, setting aside adopt or paying any dividends or other distribution in cash approve a plan with respect to any of the shares foregoing;
(k) Sellers shall not, and shall use reasonable best efforts to cause Solutions not to, grant or execute any power of capital stock attorney to or for the benefit of any Person that vests in such Person decision-making authority or the ability to bind such Seller or any other Seller or Solutions with respect to any matters that is in any respect material to such Seller or other Seller, Solutions, any Acquired Asset or the Business;
(l) Sellers shall not, and shall use reasonable best efforts to cause Solutions not to: (i) enter into any new material Contracts with respect to any spectrum capacity held by Sellers under any Communications Licenses identified on Section 4.16(a) of the Purchased Entities, Disclosure Letter; (ii) enter into any new Contracts to accept harmful interference as defined by the FCC or redeeming or repurchasing for cash Industry Canada in connection with any of the shares of capital stock Communications Licenses identified on Section 4.16(a) of the Purchased EntitiesDisclosure Letter; or (iii) seek to modify any Communications Licenses identified on Section 4.16(a) of the Disclosure Letter, except for such modifications, which become authorized pursuant to pending applications of Sellers as of the date hereof or which are reasonably required in the judgment of Sellers in order to maintain the Communications Licenses in effect;
(m) Sellers shall not, and shall use reasonable best efforts to cause Solutions not to, sell, lease, transfer or otherwise dispose (including through right of use agreements) of satellites, spare satellites, ground stations, FCC Licenses, Industry Canada Licenses or other Permits, licenses, capacity, or spectrum other than prior to December 31, 2011, as contemplated by the Operating Budget;
(n) Sellers shall not, assume, reject or assign any Material Contract other than the assumption and assignment of the Designated Contracts, as contemplated by this Agreement, to Purchaser (or to a third party in connection with an Alternative Sale); and
(o) Sellers shall not, and shall use reasonable best efforts to cause Solutions not to, enter into any Contract, directly or indirectly, unilaterally or in concert, and whether orally, in writing, formally or informally, to do any of the foregoing or assist or cooperate with any other Person in doing any of the foregoing, or authorize, recommend, propose or announce an intention to do any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Dish DBS Corp)
Interim Operations of the Business. From and after Prior to the date hereof, the Sellers shall conduct the Business and shall cause the Purchased Entities to conduct their respective businesses only in the ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the Purchased Assets and the assets of the Purchased Entities (in each case, tangible and intangible), ordinary wear and tear excepted, including by applying any available insurance proceeds received directly and specifically with respect to such assets to replace or repair any such assets, business organizations and relationships with employees and third parties having material business dealings with the Business or the Purchased Entities. Without limiting the generality of the foregoingClosing, except (w) as otherwise expressly required by this Agreement or the Ancillary Agreements (including transfers from the Purchased Entities to Honeywell or its Affiliates as contemplated by Section 2.2), (x) for actions approved in advance by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (y) to the extent required to comply with applicable Law (in which case Purchaser shall nonetheless be notified in writing) and (z) as set forth on Section 6.1 of the Disclosure Schedule, from and after the date hereof, the Sellers shall not take any of the following actions with respect to the Business, and shall cause the Purchased Entities not to take any of the following actionsprovided herein Seller shall:
(a) adopt any change in maintain the respective certificates corporate existence of incorporation or bylaws or other similar organization or governing documents of the Purchased EntitiesSeller;
(b) adopt a plan or agreement conduct the Product Business in the same manner as heretofore conducted, including by continuing performance of complete or partial liquidationall ongoing clinical and other studies related to the Pipeline Product, dissolutionand maintain the existing relations with franchisees, restructuringcustomers, mergersuppliers, consolidationcreditors, recapitalization or other reorganization of any of business partners and others having business dealings with Seller in connection with the Purchased EntitiesProduct Business;
(c) not institute any new methods of product development, purchase, sale, lease, management, accounting or operation other than minor changes consistent with prudent business practice;
(i) issuemaintain the books, sellrecords and accounts of Seller consistent with past practices, transfer(ii) file, pledgeon a timely basis, dispose of or encumber with the Equity Interests or any shares of capital stock appropriate Governmental Authorities all Tax Returns required to be filed and pay all Taxes due prior to the Closing Date and (iii) maintain, preserve and protect all of the Purchased EntitiesAssets in the condition in which they exist on the date hereof, or (ii) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or encumber, any of the equity securities of the Purchased Entities;
(d) declare, set aside or pay any dividend or other distribution other than in each case except for cashordinary wear and tear;
(e) not modify, amend, terminate, or renew any existing Contract, or enter into any new Contract, except as consented to by the Company in writing, or consummate waive, release or assign any transaction involving the acquisition of the business right or stock (orclaim, in each case to the extent constituting a going concern businessthat such waiver, assets release or other propertiesassignment relates to the Product Business;
(f) notify the Company of any other Person (other than purchases of inventory and capital equipment event or occurrence not in the ordinary course of business consistent with past practice, subject to clause (n) below);
(f) sell, assign, lease, license, transfer or otherwise dispose of any material amount of the Purchased Assets or assets or property of the Purchased Entities, except as expressly required pursuant to existing Contracts and sales of inventory in the ordinary course of business consistent with past practice;
(g) mortgage or pledge any of the material assets of the Purchased Entities, tangible or intangible, or create or suffer to exist any material Encumbrance thereupon (other than Permitted Encumbrances);
(h) other than in the ordinary course of business, incur or guarantee any Indebtedness, or issue any note, bond or debt security;
(i) not enter into any Material Contract commitment or materially amend or modify or terminate any Material Contract;
(j) enter into any new benefit or compensation plan, program, agreement or arrangement or terminate any Company Plan or increase the benefits under any Company Plan or amend or modify any Company Plan where such amendment or modification has a material cost impact on the Business taken as a whole, or grant or make a legally binding promise for, any material increase in compensation or benefits to any director, officer, or employee, or any material bonus, severance, incentive, or profit sharing payments, or (subject to Section 6.10(f)(i)) cause any employee transaction outside of a Seller or any of its Affiliates (other than the Purchased Entities) to be employed by a Purchased Entity, except as required under existing agreements or arrangements that have been Made Available to Purchaser prior to the date of this Agreement or by applicable Law; provided, however, that nothing in this Agreement shall prevent the Sellers or the Purchased Entities from entering into statutory employment agreements with new employees outside the United States, to the extent required by applicable Laws, in the ordinary course of business consistent with past practice;
(k) change the material terms and conditions of their business relationships with Key Customers or Key Suppliers other than in the ordinary course of business;
(g) not permit any insurance policy or binder pertaining to the Product Business to be canceled or terminated without notice to and prior consent of the Company, except policies that are replaced without diminution or gaps in coverage;
(h) not settle any pending litigation or claim relating to the Product Business;
(i) not institute any bankruptcy, insolvency, or similar proceedings that would affect the Product Business or the Purchased Assets;
(j) not take any action that is inconsistent with the transactions contemplated by this Agreement;
(k) not take, or agree to or commit to take, any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in this Agreement not being satisfied, or that would make any representation or warranty of Seller contained herein untrue, misleading or false in any respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of Seller to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
(l) terminate not take any action (or close omit to take any facilityaction) that would have or reasonably be expected to result in, other than periodic shutdowns individually or in the aggregate, a material adverse effect on Seller, the Pipeline Product or the Product Business;
(m) except as may otherwise be consented to by the Company, not hire or enter into any new contractual relationship with any employee or potential employee;
(n) operate the Product Business in compliance with all Laws;
(o) preserve and protect all Permits and all Intellectual Property Rights pertaining to the Product Business;
(p) not assume, incur or guarantee any Indebtedness or modify the terms of any existing Indebtedness, and not mortgage, pledge or permit to become subject to Encumbrances any Purchased Assets;
(q) not make any loans, advances or capital contributions to, or investments in, any Person, and not cancel and debts or waive any claims or rights of substantial value related to, or in connection with, the Product Business;
(r) not make any capital expenditure, or commit to make any capital expenditure, or acquire any assets, properties or rights;
(s) not, without the prior consent of the Company, make any filings or registrations related to the Product Business, with any Governmental Authority, except routine filings and registrations made in the ordinary course of business, or implement any layoff of employees that would implicate the WARN Act;; and
(mt) incur or commit to any capital expenditures materially in excess of the capital expenditure budget Made Available to Purchaser prior to the date of this Agreement, or not enter into any new line of business;
(n) take any action agreement, Contract, commitment or omit arrangement to take any action that would require disclosure do anything prohibited pursuant to this Section 4.6 if each representation 7.1 and warranty contained therein were remade as of the time of such action or omission; or
(o) not authorize, recommend, propose or agree or commit announce an intention to do, whether in writing or otherwise, any of the foregoing. Notwithstanding do anything herein prohibited pursuant to the contrary, nothing herein shall or shall be deemed to preclude or otherwise limit the Sellers (including the Purchased Entities) from declaring, setting aside or paying any dividends or other distribution in cash with respect to any of the shares of capital stock of the Purchased Entities, or redeeming or repurchasing for cash any of the shares of capital stock of the Purchased Entitiesthis Section 7.1.
Appears in 1 contract
Samples: Transaction Agreement (CytoDyn Inc.)
