Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after the date hereof and until the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser: (a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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; (b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity; (c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock; (d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares; (e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule; (f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens; (g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness; (h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing; (i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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; (j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39 (k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing; (l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business; (m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party; (n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business; (o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser; (p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice; (q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and (r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40
Appears in 1 contract
Interim Operations of the Company. Each Except (a) as expressly required by this Agreement, (b) as set forth on Section 5.1 of the Guarantors Company Disclosure Letter, (c) as required by applicable Law, or (d) as consented to in writing by Acquiror (provided that Acquiror’s response to any written request for a consent shall procure that, and covenant and agree thatnot be unreasonably delayed), after the date hereof of this Agreement and until prior to the Initial Closing Dateearlier of the Effective Time or the termination of this Agreement pursuant to Article VIII, except the Company agrees that:
(i) as expressly provided in Without limiting the effect of clauses (ii)-(xx) of this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the GuarantorsSection 5.1, the Company and Company its Subsidiaries shall use its best efforts to preserve the will conduct business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes only in the ordinary course of business consistent with past practice and use their reasonable best efforts to (A) preserve intact their business organizations, assets and lines of business, (B) maintain in effect all of their material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (C) keep available the services of their present officers and key employees, (D) maintain or replace all material leases and all material personal property used by the Company and its Subsidiaries and necessary to conduct its business in the ordinary course of business consistent with past practice (but with no obligation to renew or extend any lease or to otherwise exercise any rights or options it may have under any lease, including but not limited to rights to purchase or increase or decrease its current properties), and (E) preserve intact their relationships with third parties, including customers and suppliers, to the extent the preservation of such relationships is in the best interest of the Company;
(ii) the Company will not amend its Restated Articles of Incorporation or Amended and Restated By-Laws and the Company’s Subsidiaries will not amend their certificates of incorporation, bylaws or other comparable charter or organizational documents;
(iii) neither the Company nor any of its Subsidiaries will (A) declare, set aside or pay any dividend or other distribution, whether payable in cash, stock or other property, with respect to its capital stock, except for dividends by any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company, (B) issue, sell, transfer, pledge, dispose of or encumber or agree to issue, sell, transfer, pledge, dispose of or encumber any additional shares of capital stock or other Rights of the Company or any of its Subsidiaries (including treasury stock), other than awards granted under the Company Stock Plans as provided in clause (iv) below and in respect of shares of Company Common Stock issued pursuant to the exercise or settlement of awards granted pursuant to the Company Stock Plans in accordance with their terms, (C) split, combine or reclassify the Shares or any other outstanding capital stock of the Company or any of the Subsidiaries of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor, (D) redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Rights of the Company or any of its Subsidiaries, other than in connection with withholding to satisfy Tax obligations with respect to Company Equity Awards, acquisitions in connection with the forfeiture of Company Equity Awards, or provisions in connection with the net exercise of Options or SARs or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of the Company’s capital stock or other Rights of the Company or any of its Subsidiaries; provided that nothing contained herein shall prohibit dividends and distributions paid or made on a pro rata basis by wholly owned Subsidiaries of the Company in the ordinary course consistent with past practice;
(biv) except as set forth in Section 6.1 (b) required under the terms of the Guarantors Disclosure Schedule neither any Company Plan, any collective bargaining agreement, or any Contract with a labor union, labor organization, or works council, the Company nor will not and will not permit its Subsidiaries to (A) increase or agree to increase the compensation or employee benefits payable or to become payable to any of Company Subsidiaries shall amend their certificates of incorporation current or by-laws former officers, directors, employees or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares consultants of the Company or any of its Subsidiaries or pay any amount not required to be paid to any such individual, (B) grant, accelerate or modify the period of exercisability or vesting of equity compensation awards, (C) establish, adopt, enter into or amend any collective bargaining agreement, or any other contract or work rule or practice with any labor union, labor organization or works council, other than in the ordinary course of business consistent with past practice, (D) without complying fully with the notice requirements and other requirements of the WARN Act, effectuate
(1) a plant closing as defined in the WARN Act affecting any site of employment or one or more facilities or operating units within any site of employment of the Company, (2) a mass layoff as defined in the WARN Act affecting any site of employment of the Company, or (3) any similar action under the WARN Act requiring notice to employees in the event of an employment loss or layoff, (E) establish, adopt, enter into, materially amend or terminate any Company Subsidiaries' capital stockPlan or any plan, contract, policy or program that would be a Company Plan if in effect as of the date of this Agreement, or (F) fund (or agree to fund) any compensation or benefits under any Company Plan, including through a “rabbi” or similar trust;
(dv) neither the Company nor any of its Subsidiaries will incur, assume, guarantee or otherwise become liable for, or modify in any material respect, the terms of any Indebtedness, including any Indebtedness under the existing revolving credit facilities of the Company, other than (A) guarantees by the Company of Indebtedness of its wholly owned Subsidiaries or guarantees by Company Subsidiaries of Indebtedness of the Company and (B) Indebtedness of a Company Subsidiary payable to the Company or a wholly owned Company Subsidiary; provided that nothing contained herein shall prohibit the Company and its Subsidiaries from (i) obtaining surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice in an aggregate principal amount not to exceed $50,000,000 individually or $150,000,000 in the aggregate, (ii) obtaining performance letters of credit for the benefit of commercial counterparties in the ordinary course of business consistent with past practice in an aggregate principal amount not to exceed $35,000,000 individually or $70,000,000 in the aggregate; provided that the Company may (x) issue letters of credit to replace performance letters of credit that are outstanding as of the date hereof or sell any (y) issue letters of its capital stock credit (whether performance or any optionsfinancial letters of credit) to replace cash deposits, warrants with third party insurance carriers or otherwise, provided that the associated cash on deposit is returned to the Company, and such letters of credit shall not be subject to, or included in, the individual and aggregate limitations, or (iii) incurring other rights Indebtedness for borrowed money in the ordinary course of business consistent with past practice in an aggregate principal amount not to purchase any such shares or any securities convertible into or exchangeable for such sharesexceed $10,000,000 in the aggregate;
(evi) neither the Company nor any of Company its Subsidiaries shall: (i) incur or assume any long-term Indebtednesswill, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by for transactions among the Company and its wholly owned Subsidiaries or any of Company Subsidiariesamong the Company’s wholly owned subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to Person in the Guarantors Disclosure Schedulean aggregate principal amount greater than $5,000,000;
(fvii) neither the Company nor any of its Subsidiaries will make, commit to make or authorize any capital expenditure or research and development expenditure, other than (i) capital expenditures associated with reimbursable commercial contracts where substantially all of the cost of such expenditures is billable to the customer and (ii) capital expenditures and research and development expenditures in the amounts and in accordance with the schedule set forth in the Company’s existing capital budgets for fiscal 2012 and 2013 (including for purposes of the 2013 budget any rollover amount from the 2012 budget), copies of which are set forth in Section 5.1(vii) of the Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liensDisclosure Letter;
(gviii) neither the Company nor any of Company its Subsidiaries shall cancel any Indebtedness;
will (hA) neither the Company nor any of Company Subsidiaries shall be a party to any acquisitionrelease, mergerassign, spin-offcompromise, consolidationpay, purchase of stock or interest in any corporationdischarge, partnershipwaive, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officerssettle, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officersettle, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its Action (including any Action relating to this Agreement or the Merger) or other rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the release, assignment, compromise, payment, discharge discharge, waiver, settlement or satisfaction of claims, liabilities or obligations incurred in the ordinary course of business and consistent with past practicepractice that involve amounts not to exceed (in excess of third party insurance proceeds actually received or agreed in writing to be paid by third party insurance carriers) $10,000,000 individually or $50,000,000 in the aggregate that (x) do not require any actions or impose any restrictions on the business or operations of the Company or any of its Subsidiaries or impose any other injunctive or equitable relief, (y) provide for the complete release of claims, liabilities the Company and its Subsidiaries of all claims and (z) do not provide for any admission of liability by the Company or obligations reflected or reserved against inany of its Subsidiaries, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course (B) waive any claims of businesssubstantial value;
(oix) neither the Company nor any of its Subsidiaries will, except for transactions among the Company and its wholly owned Subsidiaries shall (i) change or among the Company’s wholly owned Subsidiaries, directly or indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets (including stock or other ownership interests of its Subsidiaries or of any other Person and including transfers of project equipment) (collectively, “Company Transfers”), other than sales of property and/or assets in the accounting methods used by it unless required by French GAAP or ordinary course of business consistent with past practice at not less than fair market value for consideration not greater than $17,500,000 individually and $62,500,000 in the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaseraggregate;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(qx) neither the Company nor any of Company its Subsidiaries shall take, or agree to or commit to take, any action that would or is reasonably likely to result in will change any of the conditions to the Closing set forth accounting methods, principles or practices used by it unless required by a change in ARTICLE VII not being satisfied, GAAP or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; andLaw;
(rxi) neither the Company nor any of its Subsidiaries will (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization (other than this Agreement), (B) except for tax-free transactions among the Company and its wholly owned Subsidiaries shall or among the Company’s wholly owned subsidiaries, acquire by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or acquire any capital stock or assets of any Person, except for acquisitions, purchases, mergers or consolidations at or below fair market value for consideration not exceeding $25,000,000 in the aggregate, (C) take or omit to take any action that would cause any material Intellectual Property Rights, including with respect to any registrations or applications for registration, to lapse, be abandoned or canceled, or fall into the public domain, other than actions or omissions in the ordinary course of business consistent with past practice and not otherwise in violation of this Section 5.1 or (D) except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned subsidiaries, enter into a joint venture or partnership or similar third-party business enterprise;
(xii) except as is required to effectuate any transaction that is otherwise expressly permitted by this Section 5.1 or Section 5.1 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries will enter into any Contract which would be a Material Contract, or amend or terminate any Material Contract in any material respect, or waive or grant any release or relinquishment of any material rights under, or renew, any such Material Contract, except that (A) the Company and its Subsidiaries may enter into reimbursable or unit price customer Contracts in the ordinary course of business consistent with past practice, (B) the Company and its Subsidiaries may enter into fixed price customer Contracts under which the Company and its Subsidiaries may receive payments in excess of $300,000,000 during the life of the Contract in the ordinary course of business consistent with past practice and (C) the Company and its Subsidiaries may enter into Contracts that are described in clause (v) of Section 3.10(a) in the ordinary course of business consistent with past practice; provided that nothing in this Section 5.1 shall prevent the Company or any of its Subsidiaries from entering into, amending, terminating, waiving or granting any release or relinquishment of any material rights under, or renewing any Contract where the Company has determined that seeking Acquiror’s consent to take such action or the communications related thereto would be reasonably likely to be a violation of any applicable Law;
(xiii) except to the extent that such actions do not result in additional material taxation payable by the Company or its Subsidiaries, neither the Company nor any of its Subsidiaries will make, change or revoke any material Tax election; settle or compromise any material Tax liability or refund; enter into any closing agreement within the meaning of Section 7121 of the Code (or any comparable provision of state, local or foreign Law) with respect to any material Tax Matter; agree to any adjustment of any material Tax attribute; change any method of Tax accounting or Tax period; execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes; file any material amended Tax Return; or request any material Tax ruling;
(xiv) neither the Company nor any of its Subsidiaries will make any Person (other than Acquiror) or action (other than the Transactions) not subject to, or exempt such Person or action from, the provision of Sections 12:132–12:134 of the LBCL or any other potentially applicable anti-takeover or similar statute or regulation, or the provisions of Article VIII of the Company’s Restated Articles of Incorporation;
(xv) neither the Company nor any of its Subsidiaries will enter into any new line of business, it being understood that organic growth of an existing line of business shall not constitute entry into a new line of business;
(xvi) neither the Company nor any of its Subsidiaries will fail to duly and timely file all material reports and other material documents required to be filed with all Governmental Entities and other authorities (including the New York Stock Exchange), subject to extensions permitted by applicable Law;
(xvii) neither the Company nor any of its Subsidiaries will permit any material insurance policy to terminate or lapse without replacing such policy with comparable coverage, or amend or cancel any material insurance policy;
(xviii) neither the Company nor any of its Subsidiaries will take, or knowingly omit to take, any action (including but not limited to any acquisition or entering into any business combination) which is intended to or which could reasonably be expected to adversely affect the ability of any of the parties hereto to perform its covenants and agreements under this Agreement or otherwise prohibit or materially delay satisfaction of the conditions to this Agreement or consummation of the Merger or other Transactions; and
(xix) neither the Company nor any of its Subsidiaries will enter into an agreement, contractContract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, do any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after From the date hereof and of this Agreement until the Initial Closing Dateor the earlier termination of this Agreement, except (i) as expressly provided in this Agreementset forth on Schedule 7.1, or (ii) as may expressly required or permitted by this Agreement or (iii) with the prior written consent of Buyer (which consent shall not be agreed in writing by Purchaser:
unreasonably withheld, delayed, or conditioned), the Sellers shall cause the Company and its Subsidiaries to, (ax) conduct the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), all material respects in the ordinary course, course of business consistent with past practice and each of the Guarantors, the Company and Company Subsidiaries shall (y) use its best commercially reasonable efforts to (A) maintain and preserve intact the current organization and business organization of the Company and its Subsidiaries, the Company’s and its Subsidiaries’ goodwill and current business relationships with the Company’s and its Subsidiaries’ suppliers, customers, contractors, licensors, distributors and others having relationships with the Company and its Subsidiaries intact, and (B) keep available the services of the current officers and employees of the Company and its Subsidiaries. Without limiting the generality of the foregoing, from the date of this Agreement until the Closing or the earlier termination of this Agreement, except (i) as set forth on Schedule 7.1, (ii) as expressly required or permitted by this Agreement or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed, or conditioned), the Sellers shall not cause or permit the Company Subsidiaries to, and maintain shall not cause or permit any Subsidiary of the Company to:
(a) create, incur, assume or guarantee any Company Debt, except for indebtedness incurred in the ordinary course of business consistent with past practice under either lines of credit existing relations on the Balance Sheet Date or capitalized lease obligations;
(b) modify the terms of any Company Debt;
(c) except for sales and installation of Products and purchase and usage of supplies and inventory in the ordinary course of business consistent with franchiseespast practice, customers(i) sell, supplierslease, creditorsassign, exclusively license, transfer or otherwise dispose of any material rights, property or assets, tangible or intangible, or (ii) mortgage, pledge or otherwise encumber any rights, property or assets other than Permitted Liens;
(d) settle, forgive, compromise or cancel any debts owed to or claims held by, or intentionally waive or release any material rights of, the Company or any of its Subsidiaries, other than, subject to the terms of Section 7.18, the Insurance Dispute;
(e) terminate or fail to renew any Insurance Policy without obtaining comparable replacement coverage;
(f) acquire or dispose of any real property or any direct or indirect interest in any real property;
(g) acquire or dispose of (by merger, consolidation, acquisition of stock or assets or otherwise) all or any material portion of any business partners enterprise;
(h) enter into any new line of business;
(i) enter into any joint venture, strategic alliance or similar venture;
(j) enter into any Contract with any Affiliate, equityholder, director or officer of the Company or its Subsidiaries, or amend or modify any existing Contract with any Affiliate, equityholder, director or officer of the Company or its Subsidiaries;
(k) except with respect to customer Contracts entered into in the ordinary course of business, enter into, extend, materially amend or modify, waive any material right under, transfer or terminate any Material Contract or agreement that, if in effect on the date hereof, would have been a Material Contract;
(l) except to the extent required by Law or any existing Contracts or Employee Plans, (i) enter into, adopt, amend or terminate any Contract or Employee Plan or any agreement, plan, program, policy or other arrangement that would be an Employee Plan if in effect on the date hereof, other than modifications relating to routine adjustments in the ordinary course of business consistent with past practice that do not increase the costs of maintaining such plan by more than a de minimis amount; (ii) grant, increase or pay any severance or termination pay or benefits to (or amend any such existing arrangement with) any current or former director, officer or employee of the Company or any of its Subsidiaries, other than the payment of severance (conditioned on a release of claims against the Company and others having business dealings its Affiliates) in an amount not to exceed $10,000 with respect to any individual employee, and not to exceed $30,000 in the aggregate in respect to all employees, whose employment with the Company or any of its Subsidiaries is involuntarily terminated by the Company Subsidiaries(other than for misconduct or other acts constituting good cause) after the date of this Agreement; (iii) increase the compensation of any employee, to the end that the goodwill and ongoing business director or officer of the Company or any of its Subsidiaries, other than increases in base salary for non-officer employees, such increase not to exceed 3% of such employee’s current base salary, and Company Subsidiaries shall be unimpaired at target annual bonuses for non-officer employees, in each case in the ordinary course of business consistent with past practices; (iv) pay any bonus, grant or modify any award, or accelerate the vesting or payment of, or fund or in any other way secure the payment, compensation or benefits under, any Employee Plan, other than the determination and payment of annual bonuses prior to the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes Date in the ordinary course of business and consistent with past practice;
(b) except practices, and subject to such limitations as are set forth on Schedule 7.1; (v) forgive any loans, or issue any loans (other than routine business expense advances in Section 6.1 (b) the ordinary course of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing documentbusiness), to the extent any such modification is not required by lawcurrent or former director, officer or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares employee of the Company or Company its Subsidiaries' capital stock; (vi) hire (A) any officer or (B) any employee with an annual base compensation greater than $120,000, other than, in the case of (B) only, to fill a vacancy occurring after the date of this Agreement; (vii) terminate any employee with an annual base compensation greater than $120,000, other than for misconduct or other acts constituting good cause; or (viii) enter into any collective bargaining or similar agreement;
(dm) neither the Company nor make any material change to its accounting methods, principles or practices, except as may be required by GAAP;
(n) authorize or make any amendment or change to its Organizational Documents;
(o) issue, sell or otherwise dispose of Company Subsidiaries shall issue any equity or sell any of its capital stock profits interests or any options, warrants warrants, calls, subscriptions or other rights to purchase any such shares equity interests (or any securities interests convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtednessinto, or except in the ordinary course valued by reference to, any equity interests) of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company its Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor make or change any of Company Subsidiaries shall payTax election, loan or advance change any amount toannual Tax accounting period, or sell, transfer or lease amend any material properties Tax Returns or assets (realfile any claims for material Tax refunds, personal or mixed, tangible or intangible) to, or enter into any agreement material closing agreement, settle any material Tax claim, audit or arrangement withassessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax Liability or adopt or change any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practiceTax accounting method;
(q) neither reclassify, split, combine or subdivide the Company nor any equity interests of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate any of its Subsidiaries or otherwise effect any recapitalization or like change in the Closing in accordance with capitalization of the terms hereof Company or materially delay such consummation; andany of its Subsidiaries;
(r) neither the Company nor any adopt a plan of Company Subsidiaries shall enter into any agreementcomplete or partial liquidation, contractdissolution, commitment merger, amalgamation, consolidation, restructuring, recapitalization or arrangement other reorganization;
(whether in writing s) agree or otherwise) commit to do take any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40actions described in clauses (a) through (r) above.
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure that, (a) From and covenant and agree that, after the date hereof and until the Initial Closing Date, of this Agreement (except (i) as expressly provided in this Agreement, or (iiw) as may be agreed required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as contemplated or permitted by this Agreement or (z) as set forth in writing by Purchaser:
(a) Section 6.1 of the Company Disclosure Schedule), the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt only in the ordinary and usual course of business and in all material respects consistent with past practice practice, and, to the extent consistent therewith, the Company shall (and shall cause each of its Subsidiaries to) use commercially reasonable efforts to (i) preserve intact their current business organization and (ii) maintain their relationships with customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters addressed specifically by any provision of this Section 6.1(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such specific provision. Without limiting the generality of the foregoing, except (w) as may be required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as contemplated or permitted by this Agreement or (z) as set forth in Section 6.1 of the Company Disclosure Schedule, from and after the date of this Agreement, neither the Company nor any of its Subsidiaries will:
(i) amend its certificate of incorporation or bylaws (or equivalent organizational documents);
(ii) except for Company Common Stock to be issued or delivered pursuant to Company Stock Options or the ESPP, each in accordance with their terms on the date hereof issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any shares of capital stock of any class or any other ownership interest of the Company or any of its Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries (including “phantom” rights and stock appreciation rights), or (B) any other securities of the Company or any of its Subsidiaries in respect of, in lieu of, or in substitution for, Company Common Stock outstanding on the date hereof;
(iii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding Company Common Stock, Company Stock Options or other securities of the Company or any of its Subsidiaries;
(iv) split, combine, subdivide or reclassify any Company Common Stock or declare, set aside for payment or pay any dividend or other distribution (whether in cash, stock or other property) in respect of any Company Common Stock, or any other securities of the Company or any of its Subsidiaries or otherwise make any payments to stockholders in their capacity as such (other than the declaration, setting aside or payment from a wholly owned Subsidiary of the Company to the Company);
(v) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than the Transactions;
(vi) directly or indirectly acquire (A) by purchase, merger or otherwise, any business or equity interest of any Person or (B) any asset or assets that, individually, has a purchase price in excess of $250,000 or, in the aggregate, have a purchase price in excess of $500,000, except for new capital expenditures, which shall be subject to the limitations of clause (viii) below, and except for the conversion purchases of certain bonds as contemplated by this Agreement; (iv) assumecomponents, guarantee, endorse raw materials or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being supplies in the ordinary course of business and consistent with past practice practice;
(vii) sell, lease, license, mortgage, sell and leaseback or otherwise encumber or dispose of any of its properties or other assets or any interests therein, except for sales of inventory, used or obsolete equipment or scrap materials in the conversion ordinary course of certain bonds as contemplated herein; business consistent with past practice;
(vviii) make any new capital expenditure or other expenditures (including in respect of research and development), other than those which, individually, are less than or equal to $350,000 or, in the aggregate, are less than or equal to $1,000,000;
(ix) incur any indebtedness for borrowed money in addition to that incurred as of the date of this Agreement, or guarantee any such indebtedness or make any material loans, advances or capital contributions to, or investments in, any other Person; , other than (viA) to the Company or any wholly owned Subsidiary of the Company or (B) to employees in respect of travel or other expenses in the ordinary course of business consistent with past practice;
(x) except as required by the terms of any Benefit Plan or Benefit Agreement, (A) increase the compensation or benefits, or pay any bonus to, any Participant, (B) grant any Participant change of control, severance, retention or termination compensation or benefits, or any increase therein, (C) enter into, amend or terminate any Benefit Agreement, (D) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Benefit Plan (including any Company Stock Option or other award thereunder), (E) accelerate the time of payment or vesting of any rights or benefits, or make any material determinations, under any Benefit Plan or Benefit Agreement, (F) pay any amount or benefit under, or grant any awards under any bonus, incentive, performance or other compensation plan or arrangement, Benefit Plan or Benefit Agreement (including the grant of Company Stock Options or other equity or equity based awards or the removal or modification of any restrictions in any Benefit Agreement or Benefit Plan or awards made thereunder) or (G) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, Contract or arrangement or Benefit Plan or Benefit Agreement;
(xi) change in any material respect any of the financial accounting methods used by the Company unless required by GAAP or applicable Law;
(xii) (A) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (viiSection 4.8(a) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivableContract, (viiiB) dispose of, abandon enter into any Contract granting or permit requiring the Company to lapse grant any distribution rights to any Company Intellectual Property or third party, (ixC) change any the source of its supply of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(fitems set forth on Section 6.1(a)(xii) neither of the Company nor Disclosure Schedule from the applicable supplier identified on such schedule (including by entering into any new Contract with any alternative source of Company Subsidiaries shall permit or allow any of their properties or assets supply), (real, personal or mixed, tangible or intangibleD) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any other Material Contract outside the ordinary course of the foregoing;
business or inconsistent with past practice or (iE) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons as permitted pursuant to an employee benefit plan or otherwise;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (i) pay or make any accrual or arrangement for payment of any pensionSection 6.4, retirement allowance or other employee benefit pursuant to any existing planmodify, agreement or arrangement to any officer, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside waive, release, assign or fail to exercise or pursue any material rights or claims thereunder, which if so modified, amended, terminated, waived, released, assigned or not exercised or pursued would reasonably be expected to (x) adversely affect the ordinary course Company and its Subsidiaries in any material respect when viewed in the aggregate, (y) impair in any material respect the ability of businessthe Company to perform its obligations under this Agreement or (z) prevent or materially delay the consummation of the Merger or any of the other Transactions;
(mxiii) neither the Company nor any of Company Subsidiaries shall except as required by applicable Law, (iA) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchasedischarge, discharge settle or satisfy any of its claims, liabilities liabilities, obligations or obligations litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction in the ordinary course of business and consistent with past practice or in accordance with their terms, of liabilities reserved against in the most recent financial statements of the Company included in the Filed SEC Reports (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, (B) cancel any indebtedness owing to the Company Financial Statements or incurred since any of its Subsidiaries, (C) waive or assign any claims or rights of substantial value (other than in connection with the Company Balance Sheet date settlement of delinquent accounts receivable in the ordinary course of business;
business consistent with past practice), (oD) neither except as permitted pursuant to Section 6.4, waive any benefits of, or agree to modify in any respect, or, subject to the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP or (ii) make any election relating terms hereof, fail to Taxesenforce, 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim matter with respect to which consent is required under, any standstill or assessment relating similar Contract to Taxes which the Company or any waiver of its Subsidiaries is a party or (E) except as permitted pursuant to Section 6.4, waive any material benefits of, or agree to modify in any material respect, or, subject to the statute terms hereof, fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality or similar Contract to which the Company or any of limitations for any such claim or assessment, without prior consent of the Purchaserits Subsidiaries is a party;
(pxiv) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease license to any material properties person or assets adversely amend or modify any rights to any Company Intellectual Property (real, personal or mixed, tangible or intangibleother than sales and distribution Contracts and their associated product licenses entered into in the ordinary course of business consistent with past practice); or
(xv) to, or enter into any agreement or arrangement withContract, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure The Company agrees that, and covenant and agree that, after during the period from the date hereof of this Agreement to the earlier of (x) termination of this Agreement in accordance with Section 8.1, and until the Initial Closing Date(y) Closing, except as (i) as otherwise expressly provided in contemplated by this Agreement or any Ancillary Agreement, or (ii) as may be agreed required by applicable Law, (iii) described in Section 5.1 of the Company Disclosure Schedules or (iv) consented to by Parent in writing by Purchaser:(which consent shall not be unreasonably withheld, conditioned or delayed):
(a) the Company shall conduct its business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and Ordinary Course in a prudent manner (en bon père de famille)all material respects and, in to the ordinary courseextent consistent with the foregoing, and each of the Guarantors, the Company and Company Subsidiaries shall use its best commercially reasonable efforts to (i) preserve the intact its present business organization of the Company and Company Subsidiaries intactgoodwill, (ii) keep available the services of the current its managers, officers and key employees of the Company and Company Subsidiaries (iii) maintain existing relationships with its Material Suppliers and maintain the existing relations with franchisees, customers, suppliers, creditors, other material business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;relationships; and
(b) except as set forth in Section 6.1 (b) the Company shall not effect any of the Guarantors Disclosure Schedule neither the Company nor following:
(i) make any of Company Subsidiaries shall amend their certificates of incorporation change in or by-laws or other constituent or governing document, amendment to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entityits Organizational Documents;
(cii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell sell, or authorize to issue or sell, any of its capital stock Equity Interests or any optionsissue or sell, warrants or other rights authorize to purchase any such shares issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any Equity Interests, or grant or issue any Company Options, as applicable (for the avoidance of doubt, this Section 5.1(b)(ii) shall not prevent (A) a Company Optionholder from otherwise exercising any or all vested Company Options held by such sharesCompany Optionholder in accordance with the applicable award agreement (or the Company from issuing Company Units upon any such exercise), (B) a Company Warrantholder from exercising any or all Company Warrants held by such Company Warrantholder in accordance with the applicable warrant agreement (or the Company from issuing Company Units upon any such exercise) or (C) the Company from entering into the Subscription Agreements in connection with the Capital Raise or from issuing and selling Equity Interests in accordance with the terms thereof);
(eiii) neither split, combine, redeem or reclassify, or purchase or otherwise acquire, any Equity Interests of the Company;
(iv) sell, lease, license, permit to lapse, transfer, abandon or otherwise dispose of any of its properties or assets (excluding any Company Owned Intellectual Property) that are material to its business, other than (A) pursuant to Contracts to which the Company nor is a party that are in effect as of the date of this Agreement, (B) sales or other dispositions in the Ordinary Course and (C) sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $500,000 in the aggregate;
(A) sell, lease, license, permit to lapse, transfer, abandon or otherwise dispose of any Company Owned Intellectual Property that is material to its business other than non-exclusive licenses granted in the Ordinary Course and the expiration of any Company Subsidiaries shall: Registered Intellectual Property at the end of its maximum statutory term or (iB) disclose any trade secrets, know how, or other confidential or proprietary information material to the business of the Company, or other material confidential information, other than pursuant to a written non-disclosure agreement or other binding confidentiality obligation;
(vi) amend in any adverse respect, waive in writing any right under or terminate any Company Material Contract, Lease, Subscription Agreement or Capital Raise Transaction Document;
(vii) (A) incur or assume any long-term IndebtednessIndebtedness in excess of $250,000, or except in the ordinary course of business, incur or assume other than (x) short-term Indebtedness exceeding twenty-five thousand euros or letters of credit incurred in the Ordinary Course, (€25,000y) borrowings under existing credit facilities in the Ordinary Course or (z) in connection with the aggregate from the date hereof until the Initial Closing; Capital Raise or (iiB) pay, repay, discharge, purchase, repurchase make any loans or satisfy advances to any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, other Person;
(viii) except as required by the terms thereof; (iii) modify under the terms of any Indebtedness Company Benefit Plan set forth on Section 3.16(a) of the Company Disclosure Schedules or other liabilityany Company Material Contract set forth on Section 3.12(a)(iii) or (iv) of the Company Disclosure Schedules; (A) grant to any employee, other than modifications officer, director or independent contractor of short term debt the Company any increase in the ordinary and usual course of business and compensation or benefits, except Ordinary Course annual or merit-based increases in base salary consistent with past practice for employees whose total annual base compensation following such increase is less than $150,000, (B) adopt or establish any new compensation or benefit plans or arrangements, or amend or terminate, or agree to amend or terminate, any existing Company Benefit Plans (or any other plan, policy or arrangement that would be a Company Benefit Plan if in effect on the date hereof), other than amendments to group welfare plans made in the Ordinary Course in conjunction with annual renewals for group welfare benefits, (C) accelerate the time of payment, vesting or funding of any compensation or benefits under any Company Benefit Plan (including any plan or arrangement that would be a Company Benefit Plan if it was in effect on the date hereof), (D) terminate (other than for cause or due to death), furlough or temporarily lay off the employment or service of any employee or independent contractor whose total annual base compensation exceeds $150,000, (E) hire or engage any employee or independent contractor whose total annual base compensation exceeds $150,000 or (F) enter into any new employment agreement with any employee having an annual base salary in excess of $150,000 (other than (x) pursuant to Section 5.19 of this Agreement and (y) agreements that can be terminated upon notice without cost, penalty or severance payment);
(ix) (A) make, change or rescind any material Tax election, (B) settle or compromise any claim, notice, audit report or assessment in respect of any material Taxes, (C) file any amended material Tax Return or claim for a material Tax refund, (D) surrender any right to claim a refund of material Taxes, (E) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, or closing agreement related to any Tax (excluding customary indemnification provisions contained in commercial agreements entered into in the Ordinary Course the primary subject of which is not Taxes), (F) fail to pay any income or other material Tax that becomes due and owing, other than Taxes being contested in good faith through appropriate proceedings, and for which adequate reserves have been established in accordance with GAAP, (G) request any Tax ruling from a taxing authority or (H) except in the Ordinary Course, consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(x) cancel or forgive any Indebtedness in excess of $100,000 owed to the Company;
(xi) except as may be required by GAAP, make any material change in the financial or Tax accounting methods, principles or practices of the Company (or change an annual accounting period);
(xii) (A) modify, extend terminate, negotiate, or enter into any Labor Agreement, or (B) recognize or certify any labor union, labor organization, works council, or other labor organization, or group of employees, as the bargaining representative for any employees of the Company;
(xiii) implement or announce any “mass layoffs,” “plant closings,” reductions in force, furloughs, salary or wage reductions, or other actions that would reasonably be expected to trigger the federal Worker Adjustment and Retraining Notification Act of 1988 or any similar Law (collectively, the “WARN Act”);
(xiv) take affirmative steps to waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor;
(xv) grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Properties;
(xvi) declare, set aside or pay any dividend or make any other distribution;
(xvii) make any material change to any of the cash management practices of the Company, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable;
(xviii) waive, release, assign, settle or compromise any material rights, claims, suits, actions, audits, reviews, hearings, proceedings, investigations or litigation (whether civil, criminal, administrative or investigative) against the Company other than waivers, releases, assignments, settlements or compromises that do not exceed $100,000 individually or $250,000 in the aggregate;
(xix) make or incur any capital expenditures, except for capital expenditures (A) in the conversion of certain bonds as contemplated by this Agreement; Ordinary Course or (ivB) assumein an amount not to exceed $250,000 individually or $1,000,000 in the aggregate;
(xx) buy, guarantee, endorse purchase or otherwise become liable acquire (by merger, consolidation, acquisition of stock or responsible (whether directly, contingently assets or otherwise) for the obligations of ), directly or indirectly, any other Personassets, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (v) securities, properties, interests or businesses, or make any loans, advances or capital contributions to, or any investments inin any Person, any other Person; than (viA) inventory and supplies in the Ordinary Course, or (B) other assets in an amount not to exceed $250,000 individually or $1,000,000 in the aggregate;
(xxi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course new line of business;
(mxxii) neither the Company nor any adopt or effect a plan of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; complete or (iii) assign partial liquidation, dissolution, restructuring, recapitalization or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)other reorganization, other than the payment, discharge or satisfaction in Merger and the ordinary course of business and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of businessother Transactions;
(oxxiii) neither fail to use commercially reasonable efforts to maintain existing insurance policies or comparable replacement policies consistent with levels maintained by the Company nor any on the date of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaserthis Agreement;
(pxxiv) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, take any action that would or is reasonably likely to result in any prevent, materially delay or impede the consummation of the conditions to the Closing set forth in ARTICLE VII not being satisfiedTransactions; or
(xxv) authorize any of, or would make commit or agree to take any representation or warranty of Guarantors contained herein inaccurate in any respect at, or as of any time prior toof, the Closing Date, or that would materially impair foregoing actions in respect of which it is restricted by the ability provisions of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Power & Digital Infrastructure Acquisition II Corp.)
Interim Operations of the Company. Each of the Guarantors shall procure The Company covenants and --------------------------------- agrees that, and covenant and agree thatexcept as (i) required by this Agreement, (ii) required by -- applicable law, (iii) required by any Material Contract or Identified Contract --- or by any Plan disclosed on Schedule 3.9(b), in each case to the extent such requirement is specifically described on Schedule 5.1(iii) or (iv) agreed to in -- writing by MergerCo, after the date hereof and until prior to the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by PurchaserEffective Time:
(a) the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), only in the ordinary coursecourse consistent with past practice and, and to the extent consistent therewith, each of the Guarantors, the Company and Company its Subsidiaries shall use its best reasonable efforts to preserve its business organization and the business organization of the Company and Company its Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries intact and maintain the existing relations with franchisees, customers, suppliers, employees and creditors, business partners and others having business dealings with ;
(b) the Company shall not amend its Articles of Organization or Company Subsidiaries, to the end that the goodwill and ongoing business of By-Laws;
(c) the Company and shall not declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock (except for cash dividends on Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes Common Stock in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule ); and neither the Company nor any of Company its Subsidiaries shall amend their certificates (i) issue, sell, grant, transfer, pledge, dispose of incorporation or by-laws or other constituent or governing document, to the extent encumber any such modification is not required by lawadditional shares of, or by the rules securities convertible into or regulations exchangeable for, or options, warrants, calls, commitments or rights of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) kind to acquire, any shares of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay of any dividend; or purchase or redeem any shares class of the Company or Company Subsidiaries' any of its Subsidiaries (except pursuant to the exercise of stock options outstanding on the date hereof and stock issuable under the Employee Stock Purchase Plan to the extent contemplated by this Agreement); (ii) incur any -- long-term indebtedness (whether evidenced by a note or other instrument, pursuant to a financing lease, sale-leaseback transaction, or otherwise) or incur short-term indebtedness other than under lines of credit existing on the date hereof, except for borrowings under existing credit facilities or lines of credit in the ordinary course of business consistent with past practice; (iii) --- redeem, purchase or otherwise acquire directly or indirectly any of its capital stockstock or other securities; or (iv) enter into or amend in any material respect -- any Lease, Material Contract or Identified Contract;
(d) neither the Company nor any of Company its Subsidiaries shall issue (i) except for - normal salary increases in the ordinary course of business consistent with past practice, grant any increase in the compensation or sell benefits payable or to become payable by the Company or any of its capital stock Subsidiaries to any officer or other management employee of the Company or any optionsSubsidiary; (ii) adopt, warrants enter into or -- amend or increase, or accelerate the payment or vesting of the amounts, benefits or rights payable or accrued or to become payable or accrued under, any bonus, incentive or deferred compensation, severance, termination, change in control, retention, stock option or other rights equity based or other material employee compensation or benefit plan, agreement or policy, provided that the Employee -------- Stock Purchase Plan shall be (A) amended simultaneously with the execution of - this Agreement to purchase preclude (1) any increases after the date hereof in the rate of payroll deduction contributions that may be made thereunder and (2) any employees who are not participating under such shares Employee Stock Purchase Plan as of the date hereof to become participants thereunder and (B) subject to Section - 2.3, terminated effective as of March 31, 1998; or (iii) enter into or amend in --- any material respect any employment, severance, retention or collective bargaining agreement or, except in accordance with the existing written policies of the Company or existing contracts or agreements, grant any severance or termination pay to any officer, director or employee of the Company or any securities convertible into or exchangeable for such sharesof its Subsidiaries;
(e) neither the Company nor any of Company its Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in shall change the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed accounting principles used by the Company or any of Company Subsidiaries, except as it unless required by the terms thereof; GAAP (iii) modify the terms of any Indebtedness or other liabilityor, other than modifications of short term debt in the ordinary and usual course of business and consistent if applicable with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (iv) assumerespect to Sub sidiaries, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estateforeign generally accepted accounting prin ciples); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries its Sub sidiaries shall permit acquire or allow agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or other wise acquire or agree to acquire any assets of their properties or any other Person (other than the purchase of assets (real, personal or mixed, tangible or intangible) to be subjected to any liensin the ordinary course of business consistent with past practice);
(g) neither the Company nor any of Company Subsidiaries its Subsidi aries shall cancel sell, lease, exchange, mortgage, pledge, trans fer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any Indebtednessof its Assets, except in the ordinary course of business consistent with past practice;
(h) neither the Company nor any of Company its Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any material arrangement, agreement leading or contract, or any material amendment, supplement, waiver or other modification in respect of any existing arrangement, agreement or contract, with any third party (other than customers in the ordinary course of business) that provides for an exclusive arrangement with that third party or is substantially more restrictive on the Company or its Subsidiaries or substantially less advantageous to any of the foregoing;Company or its Subsidiaries than arrangements, agreements or contracts existing on the date hereof; and
(i) neither the Company nor any of Company its Subsidiaries shall make compromise, settle, grant any change waiver or release relating to or otherwise adjust any Litigation, except in the compensation payable or to become payable to any ordinary course of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement business consistent with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement withpast practice, or employee benefit plan forinvolving a payment not in excess of $250,000, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant and following prior notice to an employee benefit plan or otherwiseand consultation with MergerCo;
(j) neither the Company nor Company any of its Subsidiaries shall make any changes to their severance policy material Tax election, amend any Tax Return or practicessettle or compromise any material federal, state, local or foreign Tax liability; 39and
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall its Subsid iaries will enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any an agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Samples: Merger Agreement (Cd&r Investment Associates Ii Inc)
Interim Operations of the Company. Each of During the Guarantors shall procure that, and covenant and agree that, after period from the date hereof and until of this Agreement to the Initial Closing DateEffective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (except (i) as expressly provided in this Agreement, or (iiw) as may be agreed required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as expressly permitted by this Agreement or (z) as set forth in writing by Purchaser:
(a) the Company Disclosure Schedule), the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt only in the ordinary and usual course of business in all material respects consistent with past practice, and, to the extent consistent therewith, the Company and its Subsidiaries shall use commercially reasonable efforts to (i) preserve intact their current business organization and (ii) preserve their relationships with customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters addressed specifically by any provision of this Section 6.1 shall be deemed a breach of this sentence unless such action would constitute a breach of such specific provision. Without limiting the generality of the foregoing, except (w) as may be required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as expressly permitted by this Agreement or (z) as set forth in the Company Disclosure Schedule, prior to the Effective Time, neither the Company nor any of its Subsidiaries will:
(a) issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (i) any shares of capital stock of any class or any other ownership interest of the Company or any of its Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or (ii) any other securities of the Company or any of its Subsidiaries in respect of, in lieu of, or in substitution for, Common Stock outstanding on the date hereof;
(b) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding Common Stock;
(c) split, combine, subdivide or reclassify any Common Stock or declare, set aside for payment or pay any dividend or other distribution in respect of any of its capital stock or otherwise make any payments to shareholders in their capacity as such, other than, with respect to the Company, (i) the declaration and payment of regular quarterly cash dividends or distributions in accordance with past dividend policy and except for dividends or other distributions by a wholly-owned Subsidiary of the Company and dividends or other distributions required to be paid by the Company to maintain its status as a REIT or to eliminate any United States federal income tax liability of the Company as determined under sections 857, 858 or 4981 of the Code;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than the Merger;
(e) other than (i) in the ordinary course of business consistent with past practice or (ii) to facilitate cutting rights for timber benefiting the Company's Subsidiaries, sell, transfer, lease or otherwise dispose of or subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction), except a Permitted Lien, any assets that, in the aggregate, are material to the Company and its Subsidiaries, taken as a whole; provided that the Company and its Subsidiaries shall not (except for (w) as may be required by Law, (x) with the conversion prior written consent of certain bonds Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as contemplated expressly permitted by this Agreement; Agreement or (ivz) assumeas set forth in the Company Disclosure Schedule), guaranteeprior to the Effective Time, endorse (A) provide third parties timber cutting rights on the timberlands of the Company and its Subsidiaries (other than Contracts for timber cutting services provided to the Company and its Subsidiaries) in an amount exceeding $5,000,000 in the aggregate, (B) sell capital assets in an amount exceeding $2,000,000 in any 90-consecutive-day period, (C) sell higher-and-better-use lands in an amount exceeding $2,500,000 in any 90-consecutive-day period or otherwise become liable (D) sell the Company's Central and Eastern region converting plants businesses, timber and timberlands business or responsible other manufacturing businesses;
(whether directlyf) other than (i) any acquisition of timberlands with a purchase price not in excess of $1,000,000 individually or $5,000,000 in the aggregate, contingently (ii) acquisitions of capital assets permitted by Section 6.1(n) or otherwise(iii) for acquisitions of non-capital assets in the obligations ordinary course of business, directly or indirectly acquire any assets or all or a material portion of the assets of any other Person or directly or indirectly acquire any other Person or any division or business of any other Person;
(g) except in the ordinary course of business consistent with past practice, incur or assume any indebtedness for borrowed money, except for working-capital purposes pursuant to the Company's existing credit agreement, in addition to that incurred as described of the date of this Agreement or guarantee any such indebtedness;
(i) grant any increases in the Guarantors Disclosure Schedule compensation of any of the Company's directors or officers or enter into any new employment or severance agreements with any such director or officer or (ii) increase the salaries, wages and benefits of employees (other than officers) other than, in the case of (i) and (ii) above, any increase made (w) as being required by Law, (x) in the ordinary course of business and in amounts and in a manner consistent with past practice and practice, (y) pursuant to any employment agreement or Benefit Plan in effect on the date hereof or (z) pursuant to any collective bargaining agreement;
(i) except as may be contemplated by this Agreement or in the ordinary course of business consistent with past practice, terminate or materially amend any Benefit Plans;
(j) make, change, revoke or rescind (i) any election relating to Taxes if such action would adversely affect the Company's ability to elect to be a REIT for the conversion fiscal year ending December 31, 2006 or thereafter or (ii) any material election relating to Taxes or Tax Returns;
(k) file any material amended Tax Return, settle or compromise any material liability for Taxes, surrender any material claim for a refund of certain bonds as contemplated herein; Taxes or enter into any closing agreement relating to any material Tax;
(vl) change any of the financial or Tax accounting methods, principles or practices or change the annual financial or Tax accounting period used by the Company unless required by GAAP;
(m) amend the Company Charter Documents or the equivalent documents of any of the Subsidiaries of the Company;
(n) make any loanscapital expenditure(s) other than (i) capital expenditures in the manufacturing businesses of the Company and its Subsidiaries not in excess of $7,000,000 in any 90-consecutive-day period, (ii) capital expenditures in the timber and timberlands businesses of the Company and its Subsidiaries in the ordinary course of business consistent with past practice, (iii) capital expenditures for emergency repairs and other capital expenditures necessary in light of circumstances not anticipated as of the date of this Agreement to avoid significant diminution in the value of the manufacturing businesses or the timber and timberlands business, as the case may be, of the Company and its Subsidiaries (if reasonably practicable, after consultation with Parent) and (iv) repairs and maintenance in the ordinary course of business consistent with past practice;
(o) make any investment (by contribution to capital, property transfers, purchase of securities or otherwise) in, or loan or advance (other than credit extended to customers in the ordinary course of business and travel and similar advances or capital contributions to its employees in the ordinary course of business consistent with past practice) to, any Person other than a direct or investments inindirect wholly-owned Subsidiary of the Company;
(p) (i) enter into, terminate or materially amend any Company Material Contract or any other Person; Contract that would have been required to be set forth on Section 4.21(a) of the Company Disclosure Schedule if entered into prior to the date hereof, other than in the ordinary course of business consistent with past practice, (viii) amend or modify the engagement letter with Xxxxxxx Xxxxx, Banc of America Securities or Mesirow Financial, Inc. to increase the compensation or modify the circumstances under which such compensation is payable thereunder or (iii) enter into any material commitment Contract that would be breached by, or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down require the value consent of any inventory or write-off as uncollectiblethird party in order to continue in full force following, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any consummation of the existing banking or safe deposit arrangements, described or referred to in Merger and the Guarantors Disclosure Scheduleother transactions contemplated hereby;
(fq) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) adopt or pay, grantdischarge, 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge settle or satisfy any of its material claims, liabilities or obligations (absolute, whether accrued, asserted or unassertedabsolute, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction in the ordinary course of business and consistent with past practice, of any material claims, liabilities or obligations (i) reflected or reserved against in, in the most recent consolidated financial statements (or contemplated by, the notes thereto) of the Company Financial Statements included in the Filed Company SEC Reports or (ii) incurred since the Company Balance Sheet date in the ordinary course of business; provided that this clause (q) shall not apply to settlements or compromises permitted under Section 6.1(k) or Section 6.1(r) or litigation that is subject to Section 6.10;
(or) neither settle or compromise any litigation, proceeding or investigation, other than any such settlement or compromise where the amount paid by the Company nor any in excess of Company Subsidiaries insurance proceeds and already-reserved amounts in connection therewith does not exceed $1,500,000; provided that the aggregate amount paid in connection with such settlements and compromises (in excess of insurance proceeds and already-reserved amounts in connection therewith) shall not exceed $3,000,000;
(is) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, enter into any closing new collective bargaining agreement relating to Taxesor amend materially the wage and benefit provisions of any collective bargaining agreement, 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 except for any such claim replacements, renewals or assessment, without prior consent extensions of the Purchasercollective bargaining agreements that are expiring in accordance with their terms;
(pt) except for increase the existing agreements which have been disclosed neither the Company nor any amount of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with officers' liability insurance coverage maintained by the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing other than in accordance with the terms hereof or materially delay such consummationSection 6.6; and
(ru) neither the Company nor any of Company Subsidiaries shall enter into any contract, agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing. Notwithstanding the foregoing provisions of this Section 6.1, nothing in this Section 6.1 or elsewhere in this Agreement shall forbid the Company from taking, or authorizeomitting to take, recommend, propose or announce an intention to doas the case may be, any and all actions that, in the Company's reasonable judgment, are necessary for the Company to be able to elect to be taxed as a REIT for United States federal or applicable state income tax purposes for all fiscal years beginning with the fiscal year ending December 31, 2006; provided, however, that the Company shall provide Parent with reasonable notice of any such action if such action would violate the foregoing. 40covenants set forth herein but for this paragraph; provided further that the Company shall provide such notice prior to taking or omitting to take such action, to the extent that such prior notice is commercially practicable.
Appears in 1 contract
Samples: Merger Agreement (Longview Fibre Co)
Interim Operations of the Company. Each The Company covenants and agrees that, subject to applicable Law and except as set forth in Section 5.1 of the Guarantors shall procure thatCompany Disclosure Schedule, and covenant and agree that, after during the period from the date hereof of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and until the Initial Closing Date, except (i) as expressly provided in otherwise contemplated by this Agreement), or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and the Company Subsidiaries shall will be conducted in the same manner as heretofore conducted ordinary course of business consistent with past practice and in a prudent manner (en bon père de famille), in the ordinary course, applicable Law and each of the Guarantors, the Company and the Company Subsidiaries shall use its their reasonable best efforts to preserve the intact their current business organization of the Company and Company Subsidiaries intactorganizations, keep available the services service of the its current officers and employees of the Company and Company Subsidiaries and maintain the existing relations preserve their relationships with franchisees, customers, suppliers, creditors, business partners suppliers and others having business dealings with them; provided, however, that no action by the Company or the Company SubsidiariesSubsidiaries with respect to matters specifically addressed by clauses (i) through (xix) below shall be deemed a breach of this sentence unless such action would constitute a breach of such clauses (i) through (xix). Without limiting the generality of the foregoing, to the end that the goodwill and ongoing business except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Company Disclosure Schedule, the Company and the Company Subsidiaries will not, without the prior written consent of Parent (which consent in the cases of clauses (viii), (ix), (x), (xvii), (xviii) and (xix) shall not be unimpaired at unreasonably withheld, conditioned or delayed):
(i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchaseissuance, sale, leasedisposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), managementor any securities or rights convertible into, accounting exchangeable for, or operation evidencing the right to subscribe for any shares of capital stock, or engage any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than (x) in the event that the Offer has not expired on or prior to midnight, September 30, 2011, a cash dividend of $0.23 per share payable to stockholders of record as of the close of business on September 30, 2011 (the "Permitted Dividend"), and (y) dividends by a Company Subsidiary to the Company or another Company Subsidiary;
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiaries (other than the Merger);
(v) adopt any amendments to the Company Charter or Company By-laws, or adopt any material amendments to the articles of incorporation or bylaws or similar organizational documents of any Company Subsidiary, or alter through merger, liquidation, reorganization, restructuring or in any transaction other fashion the corporate structure or activity ownership of any Company Subsidiary;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or material disposition, of assets (other than minor changes real property, which is governed under subsection (ix) below) or securities (other than the Merger), or invest its cash and marketable securities in a manner inconsistent with past practice or the “Investment Objectives and Guidelines of BNA Holdings, Inc.” dated August 24, 2010;
(vii) other than short-term borrowings in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except that can be repaid without premium or penalty, incur any indebtedness for the conversion of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse borrowed money or otherwise become liable guarantee any such indebtedness or responsible (whether directly, contingently issue any debt securities or otherwise) for the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (v) make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into any material commitment person other than the Company or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture Subsidiary or enter into any agreement leading “keep well” or other contract to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing;
(iviii) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business) or amend in any material respect or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract;
(oix) neither other than in the Company nor ordinary course of business, (A) transfer, sell, lease, sublease, or otherwise grant any of Company Subsidiaries shall (i) change right to use or occupy any of the accounting methods used by it unless required by French GAAP Company Real Property, (B) acquire, lease, sublease or the applicable Foreign GAAP otherwise enter into any agreement to use or occupy any real property or (iiC) amend or modify in any material respect, terminate, extend or renew any Real Property Lease;
(x) make capital expenditures in the aggregate in excess of 115% of the aggregate amount set forth in the Company's capital expenditure forecast previously provided to Parent;
(xi) make, revoke or change any material election relating to in respect of Taxes, adopt or change any material accounting method in respect of Taxes, change any election relating material Tax accounting policy or procedure, file any material amendment to Taxes already made, adopt any accounting method relating to Taxes, change any accounting method relating to Taxes unless required by French GAAP, the applicable Foreign GAAP or any Requirements of Lawa Tax Return, enter into any material closing agreement relating to Taxesagreement, settle or compromise any material claim or assessment relating to Taxes in respect of Taxes, or consent in writing to any extension or waiver of the statutory period of limitations applicable to any material claim or assessment relating to Taxes or any waiver in respect of the statute of limitations for any such claim or assessment, without prior consent of the PurchaserTaxes;
(pxii) except for grant any increase in the existing agreements which have been disclosed neither the Company nor compensation, bonus or benefits of any of its or a Company Subsidiaries shall paySubsidiary's current or former directors, loan officers, employees or advance any amount toconsultants, except pursuant to employment agreements or sell, transfer or lease any material properties or assets collective bargaining agreements in effect as of the date hereof;
(real, personal or mixed, tangible or intangiblexiii) to, or enter into any new or amend any existing employment, severance or termination agreement or arrangement with, with any of their respective its or a Company Subsidiary's current or former directors, officers, directors employees or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practiceconsultants;
(qxiv) neither the Company nor except as may be required to comply with applicable Law: (x) become obligated under any of Company Subsidiaries shall takenew pension plan, welfare plan, multiemployer plan, employee benefit plan, severance plan, benefit arrangement, or agree to similar plan or commit to takearrangement, any action that would or is reasonably likely to result which was not in any of existence on the conditions to the Closing set forth in ARTICLE VII not being satisfieddate hereof, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40or
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after After the date hereof and until prior to the Initial Closing Datetime the designees of Parent have been elected or appointed to, and shall constitute a majority of, the Board of Directors of the Company pursuant to Section 1.4 or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1, and except (i) as expressly provided in contemplated by this Agreement, or (ii) as may be set forth on Schedule 5.1 of the Company Disclosure Schedule or (iii) as agreed in writing by Purchaser:Parent (which agreement shall not be unreasonably withheld or delayed):
(a) the business of the Company shall and Company shall cause its Subsidiaries shall be conducted to in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), all material respects carry on their respective businesses in the ordinary course, and each of the Guarantors, ;
(b) the Company shall and Company shall cause its Subsidiaries shall to use its best all reasonable efforts to preserve the intact their current business organization of the Company and Company Subsidiaries intactorganizations, keep available the services of the their current officers and key employees of the Company and Company Subsidiaries and maintain the existing relations preserve their relationships consistent with franchisees, past practice with customers, suppliers, creditorslicensors, business partners licensees, distributors and others having business dealings with the Company or Company Subsidiaries, them to the end that the their goodwill and ongoing business of the Company and Company Subsidiaries businesses shall be unimpaired in all material respects at the Closing Date. Neither Effective Time;
(c) neither the Company nor any of its Subsidiaries shall, directly or indirectly, amend its certificate of incorporation or by-laws or similar organizational documents;
(d) neither the Company nor any of its Subsidiaries shall: (i)(A) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Company's capital stock or that of its Subsidiaries, except for quarterly dividends on Shares of up to $0.025 per share to be declared and paid at customary times and except that a wholly-owned Subsidiary of the Company may declare and pay a dividend or make advances to its parent or the Company or (B) redeem, purchase or otherwise acquire directly or indirectly any of the Company's capital stock or that of its Subsidiaries; (ii) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of the Company or its Subsidiaries, other than Shares issued upon the exercise of Options in accordance with the Option Plans as in effect on the date hereof; or (iii) split, combine or reclassify the outstanding capital stock of the Company or of any of the Subsidiaries of the Company;
(e) except as permitted by this Agreement, neither the Company nor any of its Subsidiaries shall institute acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof (including entities which are Subsidiaries of the Company or any of the Company's Subsidiaries) or (B) any assets, including real estate, except acquisitions in the ordinary course of business consistent with past practice;
(f) neither the Company nor any of its Subsidiaries shall make any new methods capital expenditure or expenditures, other than the specific capital expenditures disclosed and set forth on Schedule 5.1 of purchasethe Company Disclosure Schedule and capital expenditures not to exceed $1 million in the aggregate;
(g) neither the Company nor any of its Subsidiaries shall, saleexcept in the ordinary course of business and except as otherwise permitted by this Agreement, amend or terminate any Company Material Contract where such amendment or termination would reasonably be expected to have a Material Adverse Affect on the Company, or waive, release or assign any material rights or claims;
(h) neither the Company nor any of its Subsidiaries shall transfer, lease, managementlicense, accounting sell, mortgage, pledge, dispose of or operation encumber any property or engage in any transaction or activity assets other than minor changes in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(di) neither the Company nor any of its Subsidiaries shall: (i) enter into any employment or severance agreement with or grant any severance or termination pay to any officer, director or key employee of the Company Subsidiaries shall issue or sell any of its capital stock or any optionsits Subsidiaries except as required by the terms of any plan, warrants agreement or arrangement in effect on the date hereof or to comply with applicable Law or, with respect to employment agreements, except in the ordinary course of business and as approved by the Purchaser (which approval will not be unreasonably withheld); or (ii) hire or agree to hire any new officer or, other rights than in the ordinary course of business, consistent with past practice, hire or agree to purchase hire any such shares or any securities convertible into or exchangeable for such sharesadditional employees;
(ej) neither the Company nor any of Company its Subsidiaries shall: , except as required to comply with applicable Law or existing agreements or Benefit Plans or expressly provided in this Agreement, (iA) incur adopt, enter into, terminate, amend or assume increase the amount or accelerate the payment or vesting of any long-term Indebtednessbenefit or award or amount payable under any Benefit Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, except to the extent necessary to coordinate any such Benefit Plans with the terms of this Agreement or other than with respect to employees in the ordinary course of business, (B) increase in any respect the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee or other than with respect to employees in the ordinary course of business, (C) pay any benefit not provided for under any Benefit Plan, (D) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder) or (E) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan;
(k) neither the Company nor any of its Subsidiaries shall: (i) except in the ordinary course of business and in an aggregate amount, not to exceed $8 million, incur or assume any additional long-term debt or any additional short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closingindebtedness; (ii) pay, repay, discharge, purchase, repurchase incur or satisfy modify any Indebtedness issued material indebtedness or guaranteed by other liability except as set forth on Schedule 5.1 of the Company or any of Company Subsidiaries, except as required by the terms thereofDisclosure Schedule; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated hereinpractice; (viv) make any loans, advances or capital contributions to, or investments in, any other PersonPerson (other than to wholly owned Subsidiaries of the Company or customary loans or advances to employees in the ordinary course of business and consistent with past practice); (v) settle any material claims other than in the ordinary course of business, in accordance with past practice and without admission of liability; or (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to except in the Guarantors Disclosure Schedule;
(f) neither the Company nor any ordinary course of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement consistent with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoingpractice;
(l) neither the Company nor any of Company its Subsidiaries shall enter into or terminate change any Contract or transaction outside of the ordinary course of business;accounting methods used by it unless required by GAAP; 32
(m) neither the Company nor any of Company its Subsidiaries shall (i) grant make or change any Tax election, amend any Tax Return, change an annual Tax accounting period, adopt or change any method of Tax accounting, enter into any closing agreement, settle or compromise any Tax claim or assessment, surrender any right to claim a Tax refund, consent to any third party a license extension or waiver of the limitations period applicable to the Intellectual Property outside any Tax claim or assessment or take or omit to take any other action relating to Taxes except in the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third partybusiness consistent with past practice;
(n) neither the Company nor any of Company its Subsidiaries shall pay, repurchase, discharge or satisfy any of its material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, 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 Company Financial Statements most relevant consolidated financial statements (or incurred since the notes thereto) of the Company Balance Sheet date and its consolidated Subsidiaries included in the Company SEC Documents; or, except in the ordinary course of businessbusiness consistent with past practice, waive the benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party unless the Board of Directors determines in good faith, after consultation with outside counsel, that it would be required consistent with its fiduciary responsibilities to the Company's stockholders under applicable law;
(o) neither the Company nor any of Company its Subsidiaries shall (iby action or inaction) change amend, renew, terminate or cause to be extended any material lease, agreement or arrangement relating to any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, Leased Properties or enter into any material lease, agreement or arrangement with, with respect to any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;real property; and
(qp) neither the Company nor any of Company its Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall will enter into any an agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do, do any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Guarantors shall procure thatCompany Disclosure Schedule or as contemplated by any other provision of this Agreement and except as contemplated by the Logicon Merger Agreement, and covenant and agree thatunless Parent has consented in writing thereto, after the date hereof and until the Initial Closing Date, except Company:
(i) as expressly provided shall, and shall cause each of its Subsidiaries to, conduct its operations according to their usual, regular and ordinary course in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in substantially the same manner as heretofore conducted and in a prudent manner conducted;
(en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries ii) shall use its best efforts reasonable efforts, and shall cause each of its Subsidiaries to use its reasonable efforts, to preserve the intact their business organization of the Company organizations and Company Subsidiaries intactgoodwill, keep available the services of the current their respective officers and employees of the Company and Company Subsidiaries and maintain the existing relations satisfactory relationships with franchisees, customers, suppliers, creditors, business partners and others those persons having business dealings relationships with them;
(iii) shall not, and shall cause its Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments (other than amendments which are not material to the Company or Company Subsidiaries, to the end consummation of the transactions contemplated by this Agreement);
(iv) shall promptly notify Parent of (x) any material change in its condition (financial or otherwise), business, properties, assets, liabilities or the normal course of its business or of its properties, (y) any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the goodwill same may be contemplated), or (z) the breach of any representation or warranty contained herein;
(v) shall promptly deliver to Parent true and ongoing business correct copies of any report, statement or schedule filed with the Company SEC subsequent to the date of this Agreement;
(vi) shall not, and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor not permit any of Company its Subsidiaries shall institute any new methods of purchaseto, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes except (x) in the ordinary course of business and consistent with past practice, (y) as otherwise provided in this Agreement, enter into or amend any employment, severance or similar agreements or arrangements with any of their respective directors or executive officers;
(bvii) except as set forth in subject to the provisions of Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor 5.1, shall not, and shall not permit any of Company its Subsidiaries shall amend their certificates to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of incorporation assets or by-laws securities, any disposition of assets or other constituent securities or governing documentany release or relinquishment of any contract rights in which, to the extent in any such modification case, the aggregate consideration for such transaction is not required by law, in excess of $100 million or by which would have an adverse impact on the rules or regulations of any Governmental EntityCompany's ability to consummate the Merger;
(cviii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor shall not, and shall not permit any of Company its Subsidiaries shall alter the Company or Company Subsidiaries' outstanding to, issue any shares of their capital stock or declaresecurities, set asideexcept upon exercise of stock options, make or pay any dividend; or purchase or redeem any and, pursuant to restricted performance stock rights, restricted award shares and restricted stock rights of the Company outstanding as of the date hereof under the Northrop Grumman 1981 Long-Term Incentive Plan, the Northrop Grumman 1987 Long-Term Incentive Plan, the Northrop Grumman 1993 Long-Term Incentive Stock Plan, the Northrop Grumman 1993 Stock Plan for Non-Employee Directors and the Northrop Grumman 1995 Stock Option Plan for Non-Employee Directors, or Company Subsidiaries' capital stockeffect any stock split or otherwise change its capitalization;
(dix) neither the Company nor shall not, and shall not permit any of Company its Subsidiaries shall issue to, grant, confer or sell award any options, appreciation rights, warrants, conversion rights, restricted stock, stock units, performance shares or other rights, not existing on the date hereof, with respect to any shares of its capital stock or any options, warrants other securities of the Company or other rights to purchase any such shares or any securities convertible into or exchangeable for such sharesits Subsidiaries;
(ex) neither the Company nor shall not, and shall not permit any of Company its Subsidiaries shall: (i) incur or assume to, take any long-term Indebtednessactions which would, or except in would be reasonably likely to, prevent the ordinary course Merger from qualifying as a reorganization within the meaning of businessSection 368 of the Code;
(xi) shall not, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or and shall not permit any of Company Subsidiariesits Subsidiaries to, except as required by the terms thereof; (iii) modify amend in any material respect the terms of the Company Benefit Plans, including, without limitation, any Indebtedness employment, severance or other liabilitysimilar agreements or arrangements in existence on the date hereof, other than modifications or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements;
(xii) shall not, and shall not permit any of short term debt in the ordinary and usual course of business and consistent with past practice and except its Subsidiaries to, (x) incur, create, assume or otherwise become liable for the conversion of certain bonds as contemplated by this Agreement; (iv) borrowed money or assume, guarantee, endorse or otherwise become responsible or liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Personindividual, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; corporation or other entity or (vy) make any loans, loans or advances or capital contributions to, or investments in, to any other Person; (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, orperson, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date each case in the ordinary course of business;
(oxiii) neither shall not, and shall not permit any of its Subsidiaries to, make any material tax election other than in the ordinary course, or without the consent of Parent, which shall not unreasonably be withheld, settle or compromise any material tax liability;
(xiv) shall not, and shall not permit any of its Subsidiaries to, (y) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than regular quarterly cash dividends not to exceed $0.40 per share of Company Common Stock and dividends and distributions from Subsidiaries of the Company nor to the Company or another of its Subsidiaries) or (z) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of any of Company its Subsidiaries, or make any commitment for any such action; and
(xv) shall not, and shall not permit any of its Subsidiaries shall (i) change to, agree, in writing or otherwise, to take any of the accounting methods used by it unless required by French GAAP foregoing actions or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, take any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in ARTICLE VII not being satisfied, or which would make any representation or warranty of Guarantors contained herein inaccurate in any respect at, Article 3 hereof untrue or incorrect as of any time prior to, the Closing Date, or that would materially impair the ability of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after the date hereof and until the Initial Closing Date, except (i) Except as expressly provided in this Agreement, or (ii) as may be agreed otherwise consented to in writing by Purchaser:
Parent (awhich consent Parent may grant or withhold in its sole discretion, although, any such decision may not be unreasonably delayed) during the business period from the date of this Agreement to the Effective Time, the Company shall, and Company shall cause each of its Subsidiaries shall be conducted in the same manner as heretofore conducted to, act and in a prudent manner (en bon père de famille), carry on its business in the ordinary coursecourse of business consistent with past practice, and each of the Guarantors, the Company and Company Subsidiaries shall use its reasonable best efforts to preserve the substantially intact its current business organization of the Company and Company Subsidiaries intactorganization, keep available the services of the its current officers officers, directors, employees and employees of the Company consultants and Company Subsidiaries preserve its goodwill and maintain the existing relations its relationships with franchisees, customers, suppliers, creditorsdistributors, business partners licensors, licensees, development partners, and others having significant business dealings with it and not take any actions that would adversely affect its ability to consummate the Company Merger or Company Subsidiariesthe transactions contemplated by this Agreement. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the end that the goodwill Effective Time, except as otherwise consented to in writing by Parent (which decision to consent may not be unreasonably delayed) and ongoing business except as provided in Section 5.1 of the Company and Company Subsidiaries shall be unimpaired at Disclosure Schedule (or another section or sections of such Disclosure Schedule where the Closing Date. Neither relevance of such disclosures is readily apparent from the text of such disclosure), the Company nor any shall not, and shall cause each of Company its Subsidiaries shall institute any new methods of not to:
(a) (i) 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by lawotherwise acquire, or by the rules agree to purchase or regulations otherwise acquire any shares of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding its capital stock or declare, set aside, pay or incur any obligation to pay, any dividends on, or declare, make, or incur any obligation to make or pay any dividend; or purchase or redeem other distributions in respect of, any shares of the Company or Company Subsidiaries' its capital stock;
, (dii) neither the Company nor any of Company Subsidiaries shall issue split, combine or sell reclassify any of its capital stock or issue or authorize the issuance of any optionsother Equity Interests in respect of, warrants in lieu of or other rights in substitution for, shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any Equity Interests of the Company or such Subsidiary, except for the repurchase of Common Stock from employees, directors, consultants or contractors in connection with the termination of services in accordance with the terms of existing repurchase rights;
(b) authorize for issuance, issue (except pursuant to purchase Options outstanding as of the date of this Agreement), commit to issue (except pursuant to a new hire stock option grant to an East Coast account manager to be hired after the date hereof on terms consistent with past practice), deliver, sell, pledge or otherwise encumber any Equity Interest of the Company or such shares Subsidiary;
(c) amend the Certificate of Incorporation or By-Laws;
(d) become party to any securities convertible into merger, consolidation, share exchange, business combination, recapitalization or exchangeable for such sharessimilar transaction;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtednesssell, transfer, lease to a third party, license to a third party, pledge, mortgage, encumber, or otherwise abandon or dispose of, or agree to sell, transfer, lease to a third party, license to a third party, pledge, mortgage, encumber or otherwise dispose of or abandon, any material portion of any material property (including intellectual property and other intangible property, real, personal or mixed), except in the ordinary course of business, ;
(f) (i) incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued for borrowed money or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations obligation of any other such Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or such Subsidiary, assume, guarantee, endorse or otherwise become responsible for the obligation of any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except as described in the Guarantors Disclosure Schedule as being for short-term borrowings incurred in the ordinary course of business and consistent with past practice and except for other than pursuant to equipment lease financing not to exceed $25,000, in the conversion of certain bonds as contemplated herein; aggregate, (vii) make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into Person other than any material commitment European Subsidiary of the Company in accordance with past practice or transaction (including any capital expenditure or purchasetemporary loans to the Company’s Japanese Subsidiary in connection with sales to Japanese customers in accordance with past practice, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ixiii) change cancel, release or assign any of the existing banking indebtedness owed to it or safe deposit arrangements, described any claims or referred rights held to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liensit;
(g) neither make or agree to make any capital expenditures, except such capital expenditures as do not exceed $10,000 individually and $25,000 in the Company nor aggregate; or acquire or agree to acquire any other assets, other than inventory and supplies in the ordinary course of Company Subsidiaries shall cancel any Indebtednessbusiness consistent with past practice;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor waive, release, grant, or transfer any rights of Company Subsidiaries shall make any material value or modify or change in the compensation payable or to become payable to any of its officersmaterial respect any existing material license, directorslease, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination contract or other agreement withdocument, or employee benefit plan for, or make any loan or advance to, any other than in the ordinary course of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereofbusiness consistent with past practice, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any claims (including claims of its claimsstockholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities or obligations in the ordinary course of business consistent with past practice or in accordance with their terms as in effect on the date hereof, (iii) waive, release, assign, settle or compromise any litigation or claim other than waivers, releases, assignments, settlements or compromises of litigation or claims that do not relate to this Agreement or the Merger or other transactions contemplated by this Agreement and do not provide for injunctive or similar relief and where the amount paid (after giving effect to insurance proceeds actually received) in settlement or compromise does not exceed $10,000 individually or $25,000 in the aggregate, or (iv) commence a lawsuit other than in the ordinary course of business for the routine collection of bills;
(i) authorize, solicit, propose or announce an intention to authorize, recommend or propose, or enter into any agreement in principle or an agreement with any other Person with respect to, any plan of liquidation or dissolution, any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities, any material change in capitalization, or any partnership, association, joint venture, joint development, technology transfer, or other material business alliance;
(j) amend any Material Contract or enter into any Contract that would have been a Material Contract if entered into prior to the date hereof (other than sales Contracts entered into in the ordinary course of business, unless such Contracts grant rights to source code or technical designs or establish a technology escrow);
(k) change any accounting methods, principles or practices used by it, except as required by GAAP or by any Law or Governmental Authority;
(l) transfer to any Person any rights to its Proprietary Rights, except pursuant to licenses entered into in the ordinary courses of business consistent with past practice;
(m) fail to maintain each and every Company Permit the lack of which would have Company Material Adverse Effect;
(n) make or change any material Tax election, settle or compromise any material claim, notice, audit, report or assessment with respect to any federal, state, local or foreign Tax liability, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any material amendment to any material Tax Return, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax, or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(o) (i) adopt or amend (except as may be required by law) any Company or Subsidiary plan or any other bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee, director or former director or employee or (ii) increase the compensation or fringe benefits of any director, employee or former director or employee or pay any benefit not required by any existing plan, arrangement or agreement, in the case of clause (ii) other than increases for individuals (other than officers and directors) in the ordinary course of business consistent with past practice;
(p) hire or terminate any employee or consultant, except in the ordinary course of business consistent with past practice;
(q) grant any new or modified change in control, incentive, severance, indemnification or termination arrangement or increase or accelerate any benefits payable under its change in control, incentive, severance, indemnification or termination pay policies in effect on the date hereof;
(r) revalue any assets, including without limitation, writing down the value of inventory or writing off notes or accounts receivable in excess of amounts previously reserved as reflected in the Company Balance Sheet, except in conjunction with quarter-end procedures consistent with past practice;
(s) enter into any hedging, option, derivative or other similar transaction or any foreign exchange position or contract for the exchange of currency other than 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 Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40
Appears in 1 contract
Samples: Merger Agreement (Verisity LTD)
Interim Operations of the Company. Each of Except as may be consented to in writing by the Guarantors shall procure thatBuyer, the Company hereby covenants to the Buyer and covenant and agree the Funds that, after the date hereof and until prior to the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries The Business shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes only in the ordinary course of business and consistent the Company and the Shareholders shall use all reasonable efforts to preserve intact the Company’s present business organization, keep available the services of its current officers and employees and preserve satisfactory relationships with past practicecustomers, suppliers, distributors and others having business dealings with it, and will take no action which would materially and adversely affect the ability of the Company and the Shareholders to consummate the transactions contemplated hereby;
(b) except as set forth The Company and the Shareholders shall not, and the Shareholders shall cause the Company not to, take any action that, without the written consent of the Buyer, if taken prior to the date hereof, would constitute a breach of Section 2.8 hereof or otherwise would be required to be listed or described in Section 6.1 (b) 2.8 of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental EntitySchedule;
(c) except as set forth in Section 6.1 (b) of The Company and the Guarantors Disclosure Schedule neither Shareholders shall not, and the Shareholders shall cause the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (v) make any loans, advances or capital contributions not to, or investments in, any other Person; (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII Section 5 not being satisfied, or would make any representation or warranty of Guarantors the Company 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 Sellersthe Company, the Company Shareholders, the Funds or Purchaser the Buyer to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and;
(rd) neither The Company and the Shareholders shall not, and the Shareholders shall cause the Company nor any of Company Subsidiaries shall not to, enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing; and
(e) Neither the Company shall cause or permit, by any act or failure to act, any material License to expire or to be revoked, suspended, or authorizemodified, recommendor take any action that could be reasonably expected to cause any Governmental Authority to institute proceedings for the suspension, propose revocation, or announce an intention to do, adverse modification of any of the foregoing. 40material License.
Appears in 1 contract
Samples: Share Purchase and Redemption Agreement (Alma Lasers Ltd.)
Interim Operations of the Company. Each Except as expressly contemplated hereby or with the written consent of the Guarantors shall procure thatParent, and covenant and agree thatwhich will not be unreasonably withheld, after the date hereof Signing Date and until prior to the Initial Closing DateEffective Time, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaserthe Company shall:
(a) conduct its operations in the ordinary course of business of the Company in all material respects and Company Subsidiaries shall be conducted in substantially the same manner as heretofore such operations have been conducted and in a prudent manner prior to the Signing Date;
(en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall b) use its best commercially reasonable efforts to preserve the intact its current business organization of the Company and Company Subsidiaries intactorganization, keep available the services of the its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the Company;
(c) keep in full force all insurance policies in place as of the Signing Date;
(d) use commercially reasonable efforts to collect its receivables in the ordinary course of business consistent with past practice;
(e) pay its liabilities in the ordinary course of business consistent with past practice;
(f) close its monthly and periodic financial books and records and reporting in the ordinary course of business consistent with past practice;
(g) ensure that the Company’s officers confer regularly with Parent concerning operational matters and otherwise report regularly to Parent concerning the status of the Company’s business, condition, assets, liabilities, operations, financial performance and prospects;
(h) promptly notify Parent of any inquiry, proposal or offer from any Person relating to any Acquisition Transaction;
(i) not sell or otherwise issue any shares of capital stock or any other securities;
(j) not amend any of the Company and Company Subsidiaries and maintain the existing relations with franchiseesCharter Documents, customersnor effect or become a party to any Acquisition Transaction, suppliersrecapitalization, creditorsreclassification of shares, business partners and others having business dealings with the Company stock split, reverse stock split or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor similar transaction;
(k) not form any of Company Subsidiaries shall institute subsidiary or acquire any new methods of purchase, sale, lease, management, accounting equity interest or operation or engage other interest in any transaction or activity other than minor changes Person;
(l) not make any capital expenditure, except for capital expenditures that are made in the ordinary course of business and consistent with past practicethat, when added to all other capital expenditures made on behalf of the Company during the period between the Signing Date and the Effective Time, do not exceed $15,000 in the aggregate;
(bm) except as set forth in Section 6.1 (b) not enter into or permit any of the Guarantors Disclosure Schedule neither assets owned or used by the Company nor to become bound by any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental EntityContract;
(cn) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor not establish or adopt any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declareBenefit Plan, set aside, make or and not pay any dividend; bonus or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (v) make any loans, advances profit sharing or capital contributions similar payment to, or investments in, any other Person; (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down increase the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any amount of the existing banking or safe deposit arrangementswages, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (realsalary, personal or mixedcommissions, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association fringe benefits or other business organization compensation or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation remuneration payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, officers or employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) not change any of the its methods of accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP or (ii) make accounting practices in 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaserrespect;
(p) except for the existing agreements which have been disclosed neither the Company nor not commence any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practiceAction;
(q) neither not enter into any transaction or take any other action of the Company nor type referred to in Section 3.7;
(r) not knowingly or intentionally enter into any of Company Subsidiaries shall take, transaction or agree to knowingly or commit to take, intentionally take any other action that would causes or is reasonably likely to result in any constitutes a breach of the conditions to the Closing set forth in ARTICLE VII not being satisfied, or would make any representation or warranty of Guarantors contained herein inaccurate made by the Company in any respect atthis Agreement if such transaction had been entered into, or as of any time such action had occurred, on or prior to, to the Closing Signing Date, or that would materially impair the ability of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(rs) neither the Company nor any of Company Subsidiaries shall enter into any agreementnot agree, contract, commitment commit or arrangement offer (whether in writing or otherwise) to do take any of the foregoing, or authorize, recommend, propose or announce an intention to do, any actions described in clauses “(a)” through “(r)” of the foregoing. 40this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Blackboard Inc)
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after From the date hereof and until the Initial Closing Dateor the earlier termination of this Agreement, except as (i) as expressly provided set forth in Schedule 6.4 or Schedule 7.3(m), (ii) contemplated by this Agreement, the Plan or the Restructuring Support Agreement, (iiiii) as may be agreed consented to in writing by Purchaser:
Investor (such consent not to be unreasonably withheld, delayed or conditioned, except with respect to the matters set forth in subsections (c), (e), (f), (g), (m) and (q), which shall be subject to Investor’s consent in its sole discretion), (iv) necessary to effect the Contemplated Transactions, (v) required by Law, (vi) contemplated or permitted by the DIP Order or the credit agreement entered into pursuant to the DIP Order (the “DIP Credit Agreement”) or (vii) contemplated by any First Day Motion, (a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary coursewill, and each of will cause its Subsidiaries to, conduct the Guarantors, the Company Company’s and Company Subsidiaries shall use its best efforts to preserve the Subsidiaries’ business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes in the ordinary course of business (as is customary for Chapter 11 debtors), and consistent use all commercially reasonable efforts to preserve in all material respects their current material relationships with past practiceGovernmental Authorities, Managed Practices, suppliers, lessors, creditors and key employees and (b) the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of the capital stock of the Company or any of its Subsidiaries, or (ii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) except as set forth in Section 6.1 adjust, split, combine or reclassify any capital stock or equity interests or issue or propose or authorize the issuance of any other securities (b) of the Guarantors Disclosure Schedule neither the Company nor including options, profit interests, warrants or any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by lawsimilar security exercisable for, or by the rules or regulations of any Governmental Entityconvertible into, such other security);
(c) except incur or commit to incur any capital expenditure in excess of $100,000 individually or $500,000 in the aggregate, or authorization or commitment with respect thereto, or fail to make any material capital expenditures contemplated by the debtor-in-possession motion filed by the Company on June 16, 2013, attached hereto as Exhibit I(the “DIP Motion”), on or prior to the time that such capital expenditure was to be incurred as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stockDIP Motion;
(d) neither acquire or agree to acquire by merging or consolidating with, or purchase any portion of the Company nor stock of, or other ownership interests in, or substantial portion of assets of, or by any of Company Subsidiaries shall issue or sell other manner, any of its capital stock business or any optionscorporation, warrants partnership, association, joint venture, or other rights to purchase any such shares or any securities convertible into or exchangeable for such shareslimited liability company;
(e) neither the Company nor sell, lease, mortgage, pledge, grant any Lien on or otherwise encumber (excluding any Permitted Liens) or dispose of any of Company Subsidiaries shall: its material properties (iincluding the real property) incur or assume material assets, including the capital stock or equity interests of the Company, in each case, having value in excess of $100,000 individually or $375,000 in the aggregate or discharge or cause the satisfaction of any long-term Indebtedness, material Lien or except obligation other than current liabilities in the ordinary course of business, ;
(f) (i) incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) permit to exist any Company Debt in excess of $375,000 in the aggregate from aggregate, except as permitted pursuant to and in accordance with the date hereof until the Initial Closing; DIP Order, (ii) paywaive, repaycancel or modify any Company Debt, dischargeclaims or rights involving in excess of $375,000, purchaseexcept as contemplated by the Plan, repurchase (iii) make any loan or satisfy advances to any Indebtedness issued Person (except as permitted by the DIP Credit Agreement) or guaranteed by (iv) guarantee any Company Debt of any Person (other than the Company or any of Company its Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any “keep well” or other agreement leading to maintain any financial condition of another Person (other than a Subsidiary of the Company) or enter into any arrangement having the economic effect of any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change other than in the compensation payable ordinary course of business, enter into, assume, amend, waive or terminate any Material Contract, material permit or unexpired Lease, or any provision thereof, (ii) enter into any settlement of any material Proceeding relating to become payable a Material Contract, except as contemplated by the Plan, or (iii) enter into any Contract that would not be a Material Contract that delays or is reasonably expected to impede or materially delay the Contemplated Transactions, including the Closing;
(h) adopt or propose any amendments to any of the Company’s or its officersSubsidiaries’ Organizational Documents or take any steps to incorporate or organize any Subsidiary, directorsexcept, employeesin each case, agents in furtherance of the Restructuring or consultants the Contemplated Transactions (and approved by Investor to the extent not expressly set forth in this Agreement or the Plan);
(i) fail to Persons providing management servicesmaintain the Leased Real Property in substantially the same condition as of the date of this Agreement, orordinary wear and tear excepted, except for in accordance with the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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 otherwiseapplicable terms under the applicable Lease;
(j) neither except (i) as required by the terms of an existing Contract, agreement, arrangement, plan or policy disclosed to Investor on a schedule to this Agreement or provided in the Plan, (ii) as required to comply with Law or (iii) in the ordinary course of business, (A) enter into, adopt, amend or terminate any Employee Plan, (B) increase in any material manner the compensation or benefits of any director or officer, or management level employee with a total annual compensation as of the date hereof in excess of $250,000, of the Company nor or any of its Subsidiaries, or (C) enter into, renew (other than automatically without action by either party) or terminate any Contract, agreement, commitment or arrangement providing for the payment of compensation or benefits to any director or officer, or management level employee, of the Company Subsidiaries shall make or any changes to their severance policy or practices; 39of its Subsidiaries, with a total annual compensation as of the date hereof in excess of $250,000;
(k) neither implement any employee layoffs that would reasonably be expected to implicate the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoingWARN Act;
(l) neither commence any Proceeding (other than a Proceeding as a result of a Proceeding commenced against the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwiseSubsidiaries), or compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements contemplated by the payment, discharge Plan or satisfaction in the ordinary course of business and consistent with past practice, that involve only the payment of claims, liabilities or obligations reflected or reserved against in, or contemplated by, money damages either covered by insurance of the Company Financial Statements or incurred since the Company Balance Sheet date any of its Subsidiaries or not in excess of $250,000 individually or $500,000 in the ordinary course aggregate, in any case without the imposition of businessany equitable relief;
(m) change materially its financial or tax accounting methods, elections, principles, periods or practices, except insofar as may have been required by a change in GAAP or applicable Law;
(n) amend or modify the Restructuring Support Agreement or the Plan to the extent that such amendment or modification would materially and adversely affect Investor;
(o) neither withdraw or revoke the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP Restructuring Support Agreement or the applicable Foreign GAAP Plan or (ii) make any election relating publicly announce its intention not 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 French GAAP, pursue the applicable Foreign GAAP Restructuring Support Agreement or any Requirements of Law, 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, without prior consent of the PurchaserPlan;
(p) except for file any motion, application or pleading with the existing agreements which have been disclosed neither the Company nor Bankruptcy Court (including any of Company Subsidiaries shall paymodifications or amendments thereof) that, loan in whole or advance any amount toin part, or sell, transfer or lease is not consistent in any material properties or assets (realrespect with this Agreement, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, Restructuring Support Agreement or the Company Subsidiaries' past practicePlan, except for, with respect to the Restructuring Support Agreement or the Plan any, such motion, application or pleading that would not materially and adversely affect Investor;
(q) neither make any material changes to the working capital policies applicable to the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; andand its Subsidiaries;
(r) neither make any disclosure to, or any other filing with, a Government Authority, unless required by Law, required in the reasonable judgment of the Company nor any or otherwise required by the Bankruptcy Court in connection with the Chapter 11 Cases (in which case, such disclosure or filing would be made subject to the terms and conditions of Company Subsidiaries shall enter into any agreementthis Agreement, contract, commitment the Ancillary Agreements and the Plan); or
(s) commit or arrangement (whether agree in writing or otherwise) to do take any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40foregoing actions.
Appears in 1 contract
Samples: Investment Agreement (Radiation Therapy Services Holdings, Inc.)
Interim Operations of the Company. Each (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Guarantors shall procure thatCompany Disclosure Schedule or as contemplated by any other provision of this Agreement, and covenant and agree thatunless Parent has consented in writing thereto, after the date hereof and until the Initial Closing Date, except Company:
(i) as expressly provided shall, and shall cause Company Subsidiary to, conduct its operations according to their usual, regular and ordinary course in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in substantially the same manner as heretofore conducted and in a prudent manner conducted;
(en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries ii) shall use its best reasonable efforts to preserve the intact its business organization of the Company organizations and Company Subsidiaries intactgoodwill, keep available the services of the current its officers and employees of the Company and Company Subsidiaries and maintain the existing relations satisfactory relationships with franchisees, customers, suppliers, creditors, business partners and others those persons having business dealings relationships with them;
(iii) shall not amend its Certificate of Incorporation or Bylaws or the charter documents of Company Subsidiary;
(iv) shall promptly notify Parent of (A) any material adverse change in its condition (financial or otherwise), business, properties, assets, liabilities or the normal course of its business or of its properties, (B) any material litigation or, to the extent known to the Company, any material governmental complaints, investigations or hearings against or otherwise involving the Company or Company SubsidiariesSubsidiary (or communications indicating that the same may be contemplated), or (C) the breach of any Company representation or warranty contained herein;
(v) shall promptly deliver to Parent true and correct copies of any report, statement or schedule filed by the Company with the Commission subsequent to the end that the goodwill and ongoing business date of the Company and Company Subsidiaries this Agreement;
(vi) shall be unimpaired at the Closing Date. Neither the Company nor not enter into or amend any employment, severance or similar agreements or arrangements with any of its or Company Subsidiaries shall institute any new methods of purchaseSubsidiary's directors or executive officers, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes except (A) in the ordinary course of business and consistent with past practice, or (B) as otherwise provided in this Agreement;
(bvii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the shall not, and shall not permit Company nor any of Company Subsidiaries shall amend their certificates of incorporation Subsidiary to, authorize, propose or by-laws announce an intention to authorize or other constituent or governing document, to the extent any such modification is not required by lawpropose, or by the rules enter into negotiations or regulations an agreement with respect to any acquisition of assets or securities, any disposition of assets or securities or any release or relinquishment of any Governmental Entitycontract rights, which acquisitions, dispositions, releases or relinquishments would be outside the ordinary course of business and would involve aggregate consideration in excess of $500,000;
(cviii) except as set forth in Section 6.1 (b) shall not issue any shares of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declaresecurities, set aside, make or pay any dividend; or purchase or redeem any shares except upon exercise of Company Options outstanding as of the Company date hereof, or Company Subsidiaries' capital stockeffect any stock split or otherwise change its capitalization;
(dix) neither shall not grant, confer or award any options, appreciation rights, warrants, conversion rights, restricted stock, stock units, performance shares or other rights, not existing on the Company nor date hereof, with respect to any of Company Subsidiaries shall issue or sell any shares of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such sharesof the Company;
(ex) neither the Company nor shall not take any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtednessactions which would, or except would be reasonably likely to, prevent the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xi) shall not take any actions which would, or would be reasonably likely to, prevent the Merger from qualifying as a transaction to be accounted for as a pooling of interests in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros accordance with XXX Xx. 00;
(€25,000xii) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by applicable law (in which case prompt notice shall be given by the terms thereof; (iii) modify Company to Parent), shall not amend in any material respect the terms of the Company Benefit Plans, including without limitation any Indebtedness employment, severance or other liabilitysimilar agreements or arrangements in existence on the date hereof, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements;
(xiii) shall not incur, create, assume or otherwise become liable for the conversion of certain bonds as contemplated by this Agreement; (iv) borrowed money or assume, guarantee, endorse or otherwise become responsible or liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Personindividual, corporation or other entity, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(oxiv) neither shall not make any loans or advances to any other person, except in the Company nor ordinary course of business;
(xv) shall not make any material tax election other than in the ordinary course, or without the consent of Company Subsidiaries Parent, which shall not unreasonably be withheld, settle or compromise any material tax liability;
(ixvi) change shall not declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests;
(xvii) shall not directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock, or make any commitment for any such action; and
(xviii) shall not agree, in writing or otherwise, to take any of the accounting methods used by it unless required by French GAAP foregoing actions or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, take any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in ARTICLE VII not being satisfied, or which would make any representation or warranty of Guarantors contained herein inaccurate in Article 3 hereof untrue or incorrect in any material respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of During the Guarantors shall procure that, and covenant and agree that, after period from the date hereof and until of this Agreement to the Initial Closing DateEffective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1, except (i) as expressly provided in this Agreement, or (iiw) as may be agreed required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as expressly contemplated or permitted by this Agreement or (z) as set forth in writing by Purchaser:
(a) Section 6.1 of the Company Disclosure Schedule, the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt only in the ordinary and usual course of business in all material respects consistent with past practice, and, to the extent consistent therewith, the Company and its Subsidiaries shall use commercially reasonable efforts to (i) preserve intact their current business organization and (ii) preserve their relationships with customers, suppliers and others having business dealings with them. Without limiting the generality of the foregoing, except (w) as may be required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as expressly contemplated or permitted by this Agreement or (z) as set forth in Section 6.1 of the Company Disclosure Schedule, prior to the Effective Time, the Company shall not, and shall cause its Subsidiaries not to:
(a) (i) adopt any amendment to or other change in the certificate of incorporation or bylaws of the Company or (ii) adopt any material amendment or other material change in the certificate of incorporation or bylaws or other applicable governing instruments of any of the Company’s Subsidiaries, except, in the case of each of the foregoing clauses (i) and (ii), as may be required by the rules and regulations of the New York Stock Exchange;
(b) except for Common Stock to be issued or delivered pursuant to the Company Options outstanding on the date hereof or pursuant to the Company’s Benefit Plans as in effect on the date hereof with respect to new hires consistent with past practice and except for in an amount that does not exceed 20,000 shares of Common Stock (or options or other equity based awards) in the conversion of certain bonds as contemplated by this Agreement; (iv) assumeaggregate, guaranteeissue, endorse grant, deliver, sell, dispose of, pledge or otherwise become liable encumber, or responsible authorize or propose the issuance, grant, sale, disposition or pledge or other encumbrance of (whether directly, contingently or otherwisei) for the obligations any shares of capital stock of any class or any other Personownership interest of the Company or any of its Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or (ii) any other securities of the Company or any of its Subsidiaries in respect of, in lieu of, or in substitution for, Common Stock outstanding on the date hereof;
(c) except pursuant to the Company’s Benefit Plans as described in effect on the Guarantors Disclosure Schedule date hereof, redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding Common Stock;
(d) split, combine, subdivide or reclassify any Common Stock or declare, set aside for payment or pay any dividend in respect of any Common Stock or otherwise make any payments to stockholders in their capacity as being such, other than dividends by a wholly owned Subsidiary of the Company;
(e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than the Merger;
(f) other than in the ordinary course of business and consistent with past practice practice, acquire, sell, lease or dispose of, or grant any Lien on, any assets that, in the aggregate, are material to the Company and its Subsidiaries, taken as a whole;
(g) other than in the ordinary course of business consistent with past practice, enter into, amend in any material respect or terminate any Material Contract or any Contract that would, if in effect on the date hereof, constitute a Material Contract;
(h) except as contemplated in the Company’s capital expenditure budget for the current fiscal year previously provided to Parent or as required for health, safety or environmental regulatory requirements, authorize, or make (i) during 2010, any commitment with respect to any single capital expenditure which is in excess of $10,000,000 or capital expenditures which are, in the aggregate, in excess of $50,000,000 and (ii) during 2011, any capital expenditures during any calendar month which are, in the aggregate, in excess of $10,000,000;
(i) other than borrowings under its revolving credit facilities and accounts receivable securitization facility as such facilities are in effect on the date hereof made in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, except for the conversion of certain bonds as contemplated herein; (v) indebtedness for borrowed money in an amount up to $25,000,000 that can be repaid at any time without premium or penalty, or assume or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into , other than to the Company or any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any wholly owned Subsidiary of the existing banking or safe deposit arrangementsCompany, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
provided that this clause (i) neither shall not prohibit any extension, replacement or refinancing of revolving credit facilities or the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement withaccounts receivable securitization facility, or employee benefit plan for, any borrowings thereunder to the extent any replacement or make refinancing facility can be repaid at any loan time without premium or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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 otherwisepenalty;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (i) pay or make grant any accrual or arrangement for payment material increases in the compensation of any pensionof the Company’s directors, retirement allowance officers or other employee benefit key employees, except in the ordinary course of business consistent with past practice and in accordance with past practice or pursuant to any existing plan, collective bargaining agreement or arrangement to any officer, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate listed on Section 4.15(b) of any amount relating to unused vacation days, except to the extent the Company Disclosure Schedule or a Company Subsidiary is unconditionally obligated to do so on any Benefit Plan in effect as of the date hereof, (ii) enter into any new employment, change in control, retention, bonus or severance agreements with any director, officer or key employee, or (iii) enter into, establish, or adopt or payany Benefit Plan, grantcollective bargaining agreement, 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 trust, fund, policy or arrangement, or any employment or consulting agreement with or arrangement for the benefit of any director, officer, employee, agent current or consultant, whether past former employees or present, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall paytheir beneficiaries, 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 except in the ordinary course of business and consistent with past practice, of claims, liabilities practice or obligations reflected as would not result in a material increase in cost to the Company;
(k) except as may be contemplated by this Agreement or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of businessbusiness consistent with past practices, terminate or materially amend any of its Benefit Plans;
(o) neither the Company nor any of Company Subsidiaries shall (il) change any of the accounting methods used by it the Company unless required by French GAAP or applicable Law;
(m) (i) make, change or revoke any material Tax election or take any position on a material Tax Return filed on or after the date of this Agreement or adopt any method therein that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods unless such position or election is required by applicable Foreign GAAP Law or the Code, (ii) make enter into any election relating to Taxessettlement or compromise of any material Tax liability, (iii) file any amended Tax Return that would result in a change in any material Tax liability, taxable income or loss, (iv) change any election relating to Taxes already madeannual Tax accounting period, adopt any accounting method relating to Taxes, change any accounting method relating to Taxes unless required by French GAAP, the applicable Foreign GAAP or any Requirements of Law, (v) enter into any closing agreement relating to Taxes, settle any material Tax liability or (vi) surrender any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver for a material refund of the statute of limitations for any such claim or assessment, without prior consent of the PurchaserTaxes;
(pn) (i) settle or compromise any litigation except for the existing agreements which have been disclosed neither if it does not involve a grant of injunctive relief against the Company nor or one of its Subsidiaries and any amount paid to the other party (including as reimbursement of legal fees and expenses) does not exceed $5,000,000 or, if greater, the total incurred case reserve amount for such matter, as of the date of this Agreement, maintained by the Company or (ii) make any voluntary contribution to any of Company Subsidiaries shall pay, loan the Company’s pension plans or advance any amount to, other commitment or sell, transfer concession to or lease agreement with any material properties or assets Governmental Entity with respect thereto; or
(real, personal or mixed, tangible or intangibleo) to, or enter into any agreement or arrangement withcontract, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of The Company covenants and agrees that the Guarantors Company shall procure thatuse its reasonable best efforts to, and covenant and agree that, after the date hereof and until the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business shall cause each of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille)to use its reasonable best efforts to, conduct its operations in the ordinary course, and each usual course of the Guarantors, the Company business consistent with past practice and Company Subsidiaries shall use its reasonable best efforts to preserve the intact their respective business organization of the Company and Company Subsidiaries intactorganizations' goodwill, keep available the services of the current their respective present officers and employees of key employees, and preserve the Company goodwill and Company Subsidiaries and maintain the existing relations business relationships with franchisees, customers, suppliers, creditorsdistributors, business partners customers and others having business dealings relationships with them. Without limiting the generality of the foregoing, and except as otherwise permitted by this Agreement or as specifically disclosed in the Company Disclosure Letter, or as required by applicable law, rule or regulation prior to the Effective Time, without the consent of Merger Sub, which consent shall not be unreasonably withheld, the Company Subsidiarieswill not, and will cause each of the Company Subsidiaries not to:
(a) amend or propose to amend their respective charters or bylaws; or split, combine or reclassify their outstanding capital stock or declare, set aside or pay any dividend or distribution in respect of any capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for dividends and distributions paid by Company Subsidiaries to other Company Subsidiaries or to the Company;
(b) (i) issue or authorize or propose the issuance of, sell, pledge or dispose of, or agree to issue or authorize or propose the issuance of, sell, pledge or dispose of, any additional shares of, or any options, warrants, dividend entitlement rights, or rights of any kind to acquire any shares of, their capital stock of any class, any debt or equity securities convertible into or exchangeable for such capital stock or any other equity related right (including any phantom stock or SAR rights), other than any such issuance pursuant to options, warrants, rights or convertible securities outstanding as of the date hereof, and which derivative securities are set forth in the Company Disclosure Letter; (ii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets in each case which are material, individually or in the aggregate, to the end that Company and the goodwill and ongoing business Company Subsidiaries taken as a whole; (iii) sell (including by sale-leaseback), lease, pledge, dispose of or encumber any assets or interests therein, which are material, individually or in the aggregate, to the Company and the Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchasetaken as a whole, 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse incur or become contingently liable with respect to any material indebtedness for borrowed money or guarantee any such indebtedness or issue any debt securities or otherwise become liable incur any material obligation or responsible liability (whether directly, contingently absolute or otherwisecontingent) for the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being than short-term indebtedness in the ordinary course of business and consistent with past practice and except for or otherwise pursuant to credit facilities set forth in Section 6.1(b) of the conversion of certain bonds as contemplated hereinCompany Disclosure Letter; (v) make redeem, purchase, acquire or offer to purchase or acquire any loans, advances (x) shares of its capital stock or capital contributions to, (y) long term debt other than as required by governing instruments relating thereto; or investments in, any other Person; (vi) enter into any material contract, agreement, commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading arrangement with respect to any of the foregoing;
(ic) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, special pay arrangement with respect to termination of employment or other agreement with, arrangements or employee benefit plan for, or make agreements with any loan or advance to, any of its officers, directors, employees, Affiliates, agents officers or consultants or make any change in its existing borrowing or lending arrangements key employee except for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereofnormal salary increases and merit bonuses, (ii) adopt arrangements in connection with employee transfers or pay(iii) agreements with new employees, grantin each case, issuein the ordinary course of business consistent with past practice; or agree or implement an across the board increase in employee compensation except in the ordinary course of business consistent with past practice;
(d) except as set forth in Section 6.1(d) of the Company Disclosure Letter, accelerate adopt, enter into or accrue salary amend any, or other payments or benefits pursuant to become obligated under any new bonus, profit sharing, compensation, stock option, pension, profit-sharing, bonus, extra compensation, incentiveretirement, deferred compensation, stock purchasehealthcare, stock option, stock appreciation right, group insurance, severance pay, retirement employment or other employee benefit plan, agreement agreement, trust, fund or arrangement, or any employment or consulting agreement with or arrangement for the benefit or welfare of any directoremployee or retiree, officer, employee, agent or consultant, whether past or present, or (iii) amend any such existing plan, agreement or arrangement except as required to comply with changes in a manner inconsistent with applicable law occurring after the foregoingdate hereof;
(le) neither the Company nor except as may be required as a result of a change in law or in GAAP, change any of Company Subsidiaries shall enter into the accounting principles or terminate any Contract or transaction outside the ordinary course of businesspractices used by it;
(mf) neither otherwise than pursuant to credit facilities set forth in Section 6.1(b) of the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall Disclosure Letter, pay, repurchase, discharge or satisfy any of its material 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements financial statements (or incurred since the notes thereto) of the Company Balance Sheet date incurred in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates business consistent with the Company, or the Company Subsidiaries' past practice;
(qg) neither except as set forth in Section 6.1(g) of the Company nor Disclosure Letter, authorize, commit to or make any equipment purchases or capital expenditures other than in the ordinary course of Company Subsidiaries shall takebusiness and consistent with past practice (provided, that such purchases and/or expenditures shall, individually, be no more than $50,000, and, in the aggregate, be no more than $250,000); or
(h) except as otherwise permitted by the terms of this Agreement, take or agree to take any of the foregoing actions or commit to take, any action that would would, or is reasonably likely to to, result in any of its representations and warranties set forth in this Agreement becoming untrue, or in any of the conditions to the Closing Merger set forth in ARTICLE Article VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each Except as expressly --------------------------------- provided in this Agreement and except as set forth in the Disclosure Schedule and except as may be consented to in writing by Purchaser (such consent not to be unreasonably withheld or delayed) 20 between the date of this Agreement and the Closing Date, Seller will cause the Company and the Company Subsidiaries to (i) conduct their business only in the ordinary course and on a basis consistent with past practice, (ii) use commercially reasonable efforts to preserve intact their business organization and assets, (iii) use commercially reasonable efforts to keep available to themselves and to Purchaser the services of their present officers and key employees, (iv) not shorten or lengthen the customary payment cycles for any of its payables or receivables and (v) use commercially reasonable efforts to preserve their current relationships with their respective customers, suppliers, distributors and other Persons with which they have significant business relationships. Without limiting the generality of the Guarantors foregoing, Seller shall procure that, and covenant and agree assure that, after the date hereof and until prior to the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by without the prior written consent of Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither neither the Company nor any Company Subsidiary shall: (i) amend its certificate of Company Subsidiaries shall institute incorporation or by-laws or similar organizational documents, (ii) issue, sell, transfer, pledge, dispose of or encumber any new methods shares of purchaseany class or series of its capital stock, saleor securities convertible into or exchangeable for, leaseor options, managementwarrants, accounting calls, commitments or operation rights of any kind to acquire, any shares of any class or engage in any transaction or activity other than minor changes in the ordinary course series of business and consistent with past practice;
its capital stock, (biii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor 5.9, declare, set aside or pay any of Company Subsidiaries shall amend their certificates of incorporation or by-laws dividend or other constituent distribution payable in cash, stock or governing documentproperty with respect to any shares of any class or series of its capital stock, to the extent (iv) split, combine or reclassify any such modification is not required by lawshares of any class or series of its stock, or by the rules (v) redeem, purchase or regulations otherwise acquire directly or indirectly any shares of any Governmental Entityclass or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any (x) long-term Indebtednessdebt or (y) Indebtedness in an individual amount not to exceed $100,000 and an aggregate amount not to exceed $500,000, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchasesettle, repurchase release or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) otherwise modify the terms of any Indebtedness or other liability, other than modifications of short short-term debt in the ordinary and usual course of business and consistent with past practice and except for practice, or (iii) assume or guarantee the conversion of certain bonds as contemplated by this Agreement; (iv) assumeobligations, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently on a contingent basis or otherwise) for the obligations , of any other Person, except as described in the Guarantors Disclosure Schedule as being ordinary course of business;
(c) neither the Company nor any Company Subsidiary shall (A) grant any increase, or announce any increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company or any Company Subsidiary to any of its employees other than normal recurring increases in the ordinary course of business and or pursuant to plans, programs or agreements existing on the date hereof, including, without limitation, any increase or change pursuant to any Plan or (B) establish or increase or promise to increase any benefits under any Plan, in either case except as required by law or any agreement or involving ordinary increases consistent with the past practice and except for practices of the conversion of certain bonds as contemplated herein; Company or such Company Subsidiary;
(vd) make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down neither the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to Company nor any Company Intellectual Property Subsidiary shall voluntarily permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated prior to the Closing Date;
(ixe) change neither the Company nor any of the existing banking Company Subsidiaries shall adopt a plan of complete or safe deposit arrangementspartial liquidation, described dissolution, merger, consolidation, restructuring, recapitalization or referred to in other reorganization of the Guarantors Disclosure ScheduleCompany or any Company Subsidiary;
(f) neither the Company nor any of Company Subsidiaries Subsidiary shall permit or allow change in any material respect any of their properties the accounting methods or assets (real, personal or mixed, tangible or intangible) to be subjected to any lienspractices used by it unless required by GAAP;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII Article VI not being satisfied, or would make any representation or warranty of Guarantors Seller 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, the Company Purchaser or Purchaser Seller to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and;
(h) neither the Company nor any Company Subsidiary shall voluntarily permit or take any action or omit to take any action which results in any of the assets or properties (whether tangible or intangible) of the Company or any Company Subsidiary to be subjected to any Encumbrance other than Permitted Encumbrances;
(i) neither the Company nor any Company Subsidiary shall, except in the ordinary course of business consistent with past practice, discharge or otherwise obtain the release of any material Encumbrance;
(j) neither the Company nor any Company Subsidiary shall merge with, enter into a consolidation with or acquire an interest of 5% or more in any Person or acquire a substantial portion of the assets or business of any Person or any division or line of business thereof, or otherwise acquire any material assets other than in the ordinary course of business consistent with past practice;
(k) neither the Company nor any Company Subsidiary shall make any capital expenditure or commitment for any capital expenditure in excess of $5,000,000 in the aggregate per month;
(l) neither the Company nor any Company Subsidiary shall sell, transfer, lease, sublease, license or otherwise dispose of any properties or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets), other than the sale of immaterial assets or inventories in the ordinary course of business consistent with past practice;
(m) neither the Company nor any Company Subsidiary shall enter into any agreement, arrangement or transaction with any of its directors, officers, or shareholders (or with any relative, beneficiary, spouse or Affiliate of such Person) (other than to hire new employees in the ordinary course of business);
(n) neither the Company nor any Company Subsidiary shall write down or write up (or fail to write down or write up in accordance with GAAP consistent with past practice) the value of any inventories or receivables or revalued any assets of the Company or any Company Subsidiary other than in the ordinary course of business consistent with past practice and in accordance with GAAP;
(o) neither the Company nor any Company Subsidiary shall amend, terminate, cancel or compromise any material claims of the Company or any Company Subsidiary or waive any other rights of substantial value to the Company or any Company Subsidiary other than in the ordinary course of business and consistent with past practice;
(p) neither the Company nor any Company Subsidiary shall allow any material governmental permit that was issued or relates to the Company or any Company Subsidiary or otherwise relates to any property or asset of the Company or any Company Subsidiary to lapse or terminate or fail to renew any such governmental permit or any insurance policy that is scheduled to terminate or expire within 45 calendar days of the Closing Date;
(q) neither the Company nor any Company Subsidiary shall amend, modify or consent to the termination of any contract listed or which should be listed in Section 3.18 of the Disclosure Schedule or the Company's or any Company Subsidiary's rights thereunder other than in the ordinary course of business and consistent with past practice;
(r) neither the Company nor any Company Subsidiary shall terminate, discontinue, close or dispose of any plant, facility or other business operation;
(s) neither the Company nor any Company Subsidiary shall make any material charitable contribution;
(t) neither the Company nor any of the Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, ; and
(u) neither the Company nor any of the foregoingCompany Subsidiaries shall make, change or revoke any material Tax election or Tax accounting method, or shall settle or compromise any material Tax deficiency. 40Notwithstanding anything to the contrary contained herein, nothing shall prohibit Seller from sweeping cash from the accounts of the Company in accordance with Seller's cash management program in the ordinary course of business and consistent with past practice.
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure thatThe Company shall, and covenant and agree thatshall cause each of its Subsidiaries to, after during the period from the date hereof and of this Agreement until the Initial Closing DateEffective Time, except (i) as expressly provided in by this Agreement, as required by applicable Law, or (ii) as may be agreed in writing by Purchaser:
(a) with the prior written consent of Parent, conduct its business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary coursecourse of business consistent with past practice, and each of and, to the Guarantorsextent consistent therewith, the Company shall, and Company shall cause each of its Subsidiaries shall to, use its best all commercially reasonable efforts to preserve the intact its and its Subsidiaries’ business organization of the Company and Company Subsidiaries intactorganization, to keep available the services of the its and its Subsidiaries’ current officers and employees of the Company and Company Subsidiaries and employees, to maintain the existing relations Governmental Permits in full force and effect and timely comply with franchiseesall applicable Laws with respect thereto, and to preserve its and its Subsidiaries’ present relationships with customers, suppliers, distributors, licensors, licensees, creditors, business partners and others other Persons having business dealings relationships with it. Without limiting the Company generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement or Company Subsidiaries, to the end that the goodwill and ongoing business as set forth in Section 5.1 of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither Disclosure Letter or as required by applicable Law, the Company shall not, nor shall it permit any of Company its Subsidiaries shall institute any new methods to, without the prior written consent of purchaseParent:
(a) (i) fail to file all Tax Returns required to be filed by it and pay all of its debts and Taxes when due or (ii) fail to pay or perform its other liabilities when due, salein each case, leasesubject to good faith disputes over such debts, management, accounting Taxes or operation or engage in any transaction or activity other than minor changes in the ordinary course of business and consistent with past practiceliabilities;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the amend or propose to amend any Company nor Charter Document or any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental EntitySubsidiary Charter Document;
(c) except as set forth in Section 6.1 (bi) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make aside or pay any dividend; dividend or purchase other distribution payable in cash, stock or redeem property with respect to, or enter into any shares Contract with respect to the voting of, the capital stock of the Company or any of its Subsidiaries; (ii) issue, sell, transfer, pledge, dispose of or encumber, or agree to issue, sell, transfer, pledge, dispose of or encumber, any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, puts, collars, commitments or rights of any kind to acquire or sell (or stock appreciation rights with respect to), any shares of capital stock of the Company or any of its Subsidiaries (including treasury stock), other than in respect of the Common Shares reserved for issuance on the date of this Agreement pursuant to the exercise of Options outstanding on the date hereof, the vesting of Company Restricted Shares outstanding on the date hereof and the conversion of Preferred Shares outstanding on the date hereof into Company Common Stock, (iii) split, combine or reclassify any of the outstanding capital stock of the Company or any of the Subsidiaries of the Company (including the Common Shares) or (iv) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, directly or indirectly, any of the Company’s or any of its Subsidiaries' ’ capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shallexcept as required by applicable Law: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change changes in the compensation payable or to become payable to any of its officers, directors, employees, agents or agents, consultants or to other Persons providing management servicesservices (other than changes in wages in the ordinary course of business and consistent with past practice to employees of the Company or its Subsidiaries who are not officers, or, except for directors or Affiliates of the employment agreement with Xxxxx GalleraCompany); (ii) adopt, enter into or amend (including acceleration of vesting) any employment, severance, retention, consulting, termination, deferred compensation, “change in control” or other employee benefit agreement (collectively, “Employment Agreements”) including, without limitation, any Company Plan, except that the Company and its Subsidiaries may, in the ordinary course of business consistent with past practice, enter into in any such agreement in connection with the hiring of new employees who are not executive officers or direct reports to an executive officer; (iii) promote any officers or employees, except in connection with the Company’s annual or quarterly compensation review cycle or as the result of the termination or other agreement with, resignation of any officer or employee benefit plan for, or employee; (iv) make any loan or advance to, loans (other than travel and payroll advances to non-officer employees in the ordinary course of business consistent with past practice) to any of its officers, directors, employees, Affiliates, agents or consultants 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 a Company Plan or otherwise; or (v) take (or omit to take) any action which could reasonably be expected to result in a “good reason,” “constructive termination,” or similar event, for purposes of any Employment Agreement;
(je) neither except as required by applicable Law or under the terms of any Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall Plan, (i) pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, plan or agreement or arrangement to any officer, director, employee or Affiliate or Affiliate, other than in the ordinary course of business consistent with past practice, (ii) pay or agree to pay or make any accrual or arrangement for payment to any officerofficers, directordirectors, employee employees or Affiliate Affiliates of the Company of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (iiiii) 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 arrangementCompany Plan, or any employment or consulting agreement with or for the benefit of any director, officer, employee, agent or consultant;
(f) (i) incur or assume any long-term or short-term Indebtedness (other than an aggregate net increase of up to Two Million Dollars ($2,000,000.00) in short-term Indebtedness incurred in the ordinary course of business between the date of this Agreement and August 31, 2013; provided, however, that if the Closing has not occurred by August 31, 2013, the Company and Parent will work together to determine a new limit on short-term Indebtedness that may be incurred by the Company in the ordinary course of business during the period beginning on August 31, 2013 and continuing until the Effective Time) (including without limitation drawing down any amounts under the Credit Facility), (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether past directly, contingently or presentotherwise) for the obligations of any other Person, or (iii) amend make any such existing planloans, agreement advances or arrangement in a manner inconsistent with the foregoingcapital contributions to, or investments in, any other Person or enter into any material commitment or transaction (including, any borrowing, capital expenditure or purchase, sale or lease of assets or real estate);
(lg) neither make or authorize any initial capital expenditure, other than capital expenditures contemplated by the Company’s existing capital budget, a copy of which has been attached to Section 5.1(g) of the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of businessDisclosure Letter;
(mh) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchasedischarge, discharge waive or satisfy any of its rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)obligations, other than the payment, discharge discharge, waiver, settlement or satisfaction of any such rights, claims, liabilities or obligations, in the ordinary course of business and consistent with past practice, of or claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements (or incurred since the Company Balance Sheet date in notes to the ordinary course of businessFinancial Statements);
(oi) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it or any of its methods of reporting income or deductions for Tax purposes unless required by French a change in GAAP or the applicable Foreign GAAP or Law, (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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, enter into any closing agreement relating to Taxes, settle any material Tax claim, assessment, audit or investigation, (iii) consent to any material Tax 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, without prior consent (iv) make, revoke or change any Tax election, (v) request a Tax ruling, (vi) amend any Tax Return or (vii) file any Tax Return in a manner that is materially inconsistent with past custom and practice with respect to the Company or any of its Subsidiaries unless required by applicable Law;
(j) (i) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than this Agreement) or (ii) acquire, transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets, other than inventory in the ordinary course of business consistent with past practice;
(k) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets (other than in the ordinary course of business consistent with past practices), securities, properties, interests or businesses;
(l) sell, lease, license, or otherwise transfer any of its material assets, securities, properties, interests, Governmental Permits or businesses, other than the sale of inventory in the ordinary course of business;
(m) other than in the ordinary course of business consistent with past practices, (i) amend, supplement, or terminate any Material Contract or (ii) enter into any Contract that would have been required to be disclosed in Section 3.9(a) of the PurchaserCompany Disclosure Letter as a Material Contract had it been entered into prior to the date hereof;
(n) place or allow the creation of any material Encumbrance (other than a Permitted Encumbrance) on any of their respective assets and properties;
(o) terminate or cancel any material insurance policy;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding or arrangement withsimilar Contract with respect to any joint venture, any of their respective officers, directors strategic partnership or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practicealliance;
(q) neither the Company nor initiate, settle or compromise any of Company Subsidiaries shall take, or agree to or commit to take, material Action;
(r) knowingly take any action that would or is knowingly omit to take any action, which action or omission could reasonably likely be expected to result in any loss, impairment or adverse modification of the conditions any Governmental Permit;
(s) make any bonus payment nor any payment pursuant to the Closing set forth 2013 Short-Term Incentive Plan, except for payments made in ARTICLE VII not being satisfiedthe ordinary course to Employees other than Xxxxx X. Xxxxxx, Xxxxx X. Xxxx, Xxxxx Xxxxxx, Xxxx Xxxxxxx, or would make any representation Xxxxx Xxxxx, for whom no bonus payments or warranty of Guarantors contained herein inaccurate in any respect at, or as of any time payments pursuant to the 2013 Short-Term Incentive Plan may be made prior to, to the Closing Date, or that would materially impair the ability of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummationEffective Time; andor
(rt) neither the Company nor any of Company Subsidiaries shall enter into any an agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose to authorize or announce an intention to do, do any of the foregoing. 40None of the covenants contained in this Section 5.1 is intended to give Parent or Merger Sub the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company and its Subsidiaries shall exercise, in accordance with the terms and conditions of this Agreement, operational control over their respective businesses, assets and properties.
Appears in 1 contract
Interim Operations of the Company. Each of During the Guarantors shall procure that, and covenant and agree that, after period from the date hereof and until of this Agreement to the Initial Closing DateEffective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (except (i) as expressly provided in this Agreement, or (iiw) as may be agreed required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as contemplated or permitted by this Agreement or (z) as set forth in writing by Purchaser:
(a) the Company Disclosure Schedule), the business of the Company and Company its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt only in the ordinary and usual course of business and in all material respects consistent with past practice practice, and, to the extent consistent therewith, the Company and its Subsidiaries shall use commercially reasonable efforts to (i) preserve intact their current business organization and (ii) preserve their relationships with customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters addressed specifically by any provision of this Section 6.1 shall be deemed a breach of this sentence unless such action would constitute a breach of such specific provision. Without limiting the generality of the foregoing, except (w) as may be required by Law, (x) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, (y) as contemplated or permitted by this Agreement or (z) as set forth in the Company Disclosure Schedule, prior to the Effective Time, neither the Company nor any of its Subsidiaries will:
(a) amend its articles of incorporation or bylaws (or equivalent organizational documents);
(b) except for Common Stock to be issued or delivered pursuant to the Company Option Plans or the ESPP, or upon conversion of any of the Senior Notes and except for the conversion issuance, grant or delivery of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) options for Common Stock issued pursuant to the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being Company Option Plans in the ordinary course of business and consistent with past practice practice, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (i) any shares of capital stock of any class or any other ownership interest of the Company or any of its Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or (ii) any other securities of the Company or any of its Subsidiaries in respect of, in lieu of, or in substitution for, Common Stock outstanding on the date hereof;
(c) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding Common Stock;
(d) split, combine, subdivide or reclassify any Common Stock or declare, set aside for payment or pay any dividend or other distribution in respect of any Common Stock or otherwise make any payments to shareholders in their capacity as such;
(e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than the Merger;
(f) other than in the ordinary course of business consistent with past practice, acquire, sell, lease, dispose of, pledge or encumber any assets that, in the aggregate, are material to the Company and except its Subsidiaries, taken as a whole;
(g) other than in the ordinary course of business consistent with past practice, incur any material indebtedness for borrowed money in addition to that incurred as of the conversion date of certain bonds as contemplated herein; (v) this Agreement or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into , other than to the Company or any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or writewholly-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any owned Subsidiary of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any IndebtednessCompany;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form grant any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change increases in the compensation payable of any employees of the Company and its Subsidiaries (the “Employees”) or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent in accordance with past practice, or enter into any material new employment or severance agreements with any such director or Employee, except for retention bonus agreements, bonus plans or bonus arrangements for Employees other than Executive Officers involving, in the aggregate, obligations of claimsnot more than ten million dollars ($10,000,000.00) (the “Stabilization Amount,” any such agreements, liabilities plans or obligations reflected arrangements subject to this exception, “Post-Signing Stabilization Plans”), provided any bonuses thereunder will be paid to an Employee in accordance with the following terms: a bonus grant may provide for not more than thirty percent (30%) of the total potential bonus being paid prior to six (6) months after the date of this Agreement, and the Employee may not have voluntarily terminated his or reserved against inher employment with the Company, Parent or contemplated bythe Surviving Corporation prior to the date specified for payment or have been terminated for Cause. As soon as practicable after the Company or a Subsidiary thereof determines that an Employee is eligible to be considered for a Post-Signing Stabilization Plan benefit, the Company Financial Statements shall inform Parent of the name of the individual awarded such right and the amount of the potential bonus.
(i) except as may be contemplated by this Agreement or incurred since the Company Balance Sheet date in the ordinary course of businessbusiness consistent with past practices, terminate or materially amend any Benefit Plans;
(o) neither the Company nor any of Company Subsidiaries shall (ij) change any of the accounting methods used by it the Company unless required by French GAAP or the applicable Foreign GAAP or Law; or
(iik) 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, enter into any closing agreement relating to Taxescontract, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Samples: Merger Agreement (Aquantive Inc)
Interim Operations of the Company. Each (a) Except as otherwise expressly contemplated by this Agreement, as set forth in the Company Disclosure Schedule or as consented to in writing by Parent, during the period from the date of this Agreement to the earliest to occur of the Guarantors shall procure thatdate of the termination of this Agreement and the Control Date, the Company shall, and covenant and agree thatshall cause its subsidiaries to, after the date hereof and until the Initial Closing Date, except (i) as expressly provided conduct its operations according to its ordinary course of business consistent with past practice and in this Agreementcompliance in all material respects with all applicable Laws, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its reasonable best efforts to preserve the intact its business organization of the Company organizations and Company Subsidiaries intactgoodwill, keep available the services of the current officers its officers, employees and employees consultants, and maintain satisfactory relationships with those Persons having business relationships with them, (iii) not take any action that would reasonably be expected to result in any of the Company and Company Subsidiaries and maintain conditions set forth in Annex I hereto or the existing relations with franchiseesconditions set forth in Article 7 hereof not being satisfied or could result in a material delay or material additional regulatory burdens to, customersor otherwise impede or prevent consummation of, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, as set forth in Section 6.1 (b) the Company Disclosure Schedule or as consented to in writing by Parent, during the period from the date of this Agreement to the earliest to occur of the Guarantors Disclosure Schedule neither date of the termination of this Agreement and the Control Date, the Company nor any shall not, and shall cause each of Company Subsidiaries shall its subsidiaries not to:
(i) except to the extent required to comply with applicable Law, amend their certificates its certificate of incorporation or by-laws bylaws (or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entitysimilar organizational documents);
(cii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company issue, sell or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem pledge any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any optionsother ownership interest in the Company or its subsidiaries, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for any such sharesshares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities (or derivative instruments in respect of the foregoing) other than (A) the issuance of shares of Company Common Stock pursuant to the current purchase period in progress under the Company ESPP or upon the exercise of Company Options outstanding on the date hereof or (B) issuances by a direct or indirect wholly owned subsidiary of the Company to its parent or another wholly owned subsidiary of the Company;
(eiii) neither effect any stock split or otherwise change its capitalization as it exists on the date hereof, or directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of its subsidiaries;
(iv) (A) grant, confer or award any option, warrant, convertible security or other right to acquire or award relating to any shares of its capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any Company Stock Plan, (B) accelerate or waive any or all of the goals, restrictions or conditions imposed under any Company Option or other award under a Company Stock Plan, (C) grant any stock options or other equity-based compensation to any officer, employee or director of the Company nor or any of its subsidiaries, (D) enter into any new Employment Agreement or amend any existing Employment Agreement or (E) hire any executive officer of the Company Subsidiaries shall: or any of its subsidiaries; Table of Contents
(iv) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the subsidiaries to the Company);
(vi) mortgage or otherwise encumber or subject to any Lien, or sell, lease or otherwise dispose of any of its property or assets (including capital stock of its subsidiaries), other than (A) Liens that are incurred in the ordinary course of business consistent with past practice, (B) the sale or disposition of inventory in the ordinary course of business consistent with past practice, and (C) the sale, lease, encumbrance or other disposition of assets that, individually or in the aggregate, are obsolete or not material to the Company and its subsidiaries taken as a whole;
(vii) (A) acquire by merger, purchase or any other manner, any business or entity or any division thereof or (B) otherwise acquire any assets which would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except for purchases of inventory, supplies or capital equipment in the ordinary course of business consistent with past practice and the acquisition of assets for consideration which does not exceed $100,000 in the aggregate;
(viii) except for borrowings under existing credit facilities and excepting transactions between the Company and any subsidiary, incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase debt or satisfy issue any Indebtedness issued debt securities or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the debt or other obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being other than obligations (other than debt) of its subsidiaries incurred in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; business;
(vA) make any loans, advances or capital contributions to, or investments in, any other Person; Person (viother than subsidiaries), except with respect to commitments outstanding as of the date hereof, or (B) enter into forgive any material commitment loans, advances or transaction (including any capital expenditure contributions to, or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectibleinvestments in, any notes or accounts receivableother Person (other than subsidiaries), for an aggregate amount in excess of $100,000 (viiias to clauses (A) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or and (ixB) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedulecollectively);
(fx) neither except as contemplated by this Agreement or as required by applicable Law, (A) increase the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (realsalaries, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association wages or other business organization compensation or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation benefits payable or to become payable to its directors, officers or employees except for increases in salary or wages of any of its employees in the ordinary course of business consistent with past practice, (B) other than in accordance with existing agreements and policies, grant any severance pay or bonuses to its officers, directorsdirectors or employees other than in accordance with Section 6.2(b)(x) of the Company Disclosure Schedule or (C) establish, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Galleraadopt, enter into or amend any employmentCompany Employee Benefit Plan, severanceCompany Stock Plan, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharingcollective bargaining, bonus, extra profit sharing, thrift, compensation, incentivestock option, restricted stock, pension, retirement, deferred compensation, stock purchase, stock option, stock appreciation right, group insurancetermination, severance pay, retirement or other employee benefit plan, agreement agreement, trust, fund, policy or arrangement, or any employment or consulting agreement with or arrangement for the benefit of any director, officerofficer or employee or award any bonuses to any officer or employee of the Company, employeeother than an amendment under the Company’s 401(k) plan and Q-One Biotech, agent Inc.’s 401(k) Plan to provide for acceleration of vesting of all account balances of Continuing Employees whose employment is terminated without cause within one year of the Effective Time; Table of Contents
(xi) change any of the accounting principles or consultantpractices used by the Company, whether past or present, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoingexcept as may be required by GAAP;
(lxii) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its material claims, material liabilities or material obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction (A) of any such material claims, material liabilities or material obligations in the ordinary course of business and consistent with past practice, practice or (B) of material claims, material liabilities or material obligations reflected or reserved against in, or contemplated by, the Company Financial Statements consolidated financial statements (or incurred since the notes thereto) contained in the Company Balance Sheet Reports;
(xiii) agree to the settlement of any claim or litigation, which settlement would have a Company Material Adverse Effect;
(xiv) except to the extent required under existing employee and director benefit plans, agreements or arrangements as in effect on the date of this Agreement or as contemplated by this Agreement, accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(xv) enter into any agreement, understanding or commitment that restrains, limits or impedes the ability of the Company or any of its subsidiaries to compete with or conduct any business or line of business, including geographic limitations on the activities of the Company or any of its subsidiaries;
(xvi) materially modify, amend or terminate any Material Contract, or waive, relinquish, release or terminate any right or claim, in each case, except in the ordinary course of businessbusiness consistent with past practice;
(oxvii) neither other than with respect to commitments outstanding as of the date hereof, make any capital expenditures in the aggregate for the Company nor and its subsidiaries in excess of $3,000,000, in the aggregate;
(xviii) take any action to cause the shares of Company Subsidiaries shall Common Stock to be delisted from the Nasdaq prior to the consummation of the Merger;
(ixix) make or change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP or (ii) make material Tax election, file 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 French GAAP, the applicable Foreign GAAP or any Requirements of Lawmaterial amended Tax Return, enter into any closing agreement relating agreement, settle or compromise any material liability with respect to Taxes, settle agree to any material adjustment of any Tax attribute, file any claim or assessment relating to Taxes for a refund of Taxes, or consent to any claim extension or assessment relating to Taxes or any waiver of the statute of limitations for limitation period applicable to any such Tax claim or assessment, without prior consent of the Purchaser;; or
(pxx) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan agree in writing or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation otherwise to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, any action that would or is reasonably likely to result in take any of the conditions to the Closing set forth in ARTICLE VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Invitrogen Corp)
Interim Operations of the Company. Each Except (a) as expressly required by this Agreement, (b) as set forth on Section 5.1 of the Guarantors Company Disclosure Letter, (c) as required by applicable Law, or (d) as consented to in writing by Acquiror (provided that Acquiror’s response to any written request for a consent shall procure that, and covenant and agree thatnot be unreasonably delayed), after the date hereof of this Agreement and until prior to the Initial Closing Dateearlier of the Effective Time or the termination of this Agreement pursuant to Article VIII, except the Company agrees that:
(i) as expressly provided in Without limiting the effect of clauses (ii)-(xx) of this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the GuarantorsSection 5.1, the Company and Company its Subsidiaries shall use its best efforts to preserve the will conduct business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes only in the ordinary course of business consistent with past practice and use their reasonable best efforts to (A) preserve intact their business organizations, assets and lines of business, (B) maintain in effect all of their material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (C) keep available the services of their present officers and key employees, (D) maintain or replace all material leases and all material personal property used by the Company and its Subsidiaries and necessary to conduct its business in the ordinary course of business consistent with past practice (but with no obligation to renew or extend any lease or to otherwise exercise any rights or options it may have under any lease, including but not limited to rights to purchase or increase or decrease its current properties), and (E) preserve intact their relationships with third parties, including customers and suppliers, to the extent the preservation of such relationships is in the best interest of the Company;
(ii) the Company will not amend its Restated Articles of Incorporation or Amended and Restated By-Laws and the Company’s Subsidiaries will not amend their certificates of incorporation, bylaws or other comparable charter or organizational documents;
(iii) neither the Company nor any of its Subsidiaries will (A) declare, set aside or pay any dividend or other distribution, whether payable in cash, stock or other property, with respect to its capital stock, except for dividends by any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company, (B) issue, sell, transfer, pledge, dispose of or encumber or agree to issue, sell, transfer, pledge, dispose of or encumber any additional shares of capital stock or other Rights of the Company or any of its Subsidiaries (including treasury stock), other than awards granted under the Company Stock Plans as provided in clause (iv) below and in respect of shares of Company Common Stock issued pursuant to the exercise or settlement of awards granted pursuant to the Company Stock Plans in accordance with their terms, (C) split, combine or reclassify the Shares or any other outstanding capital stock of the Company or any of the Subsidiaries of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor, (D) redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Rights of the Company or any of its Subsidiaries, other than in connection with withholding to satisfy Tax obligations with respect to Company Equity Awards, acquisitions in connection with the forfeiture of Company Equity Awards, or provisions in connection with the net exercise of Options or SARs or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of the Company’s capital stock or other Rights of the Company or any of its Subsidiaries; provided that nothing contained herein shall prohibit dividends and distributions paid or made on a pro rata basis by wholly owned Subsidiaries of the Company in the ordinary course consistent with past practice;
(biv) except as set forth in Section 6.1 (b) required under the terms of the Guarantors Disclosure Schedule neither any Company Plan, any collective bargaining agreement, or any Contract with a labor union, labor organization, or works council, the Company nor will not and will not permit its Subsidiaries to (A) increase or agree to increase the compensation or employee benefits payable or to become payable to any of Company Subsidiaries shall amend their certificates of incorporation current or by-laws former officers, directors, employees or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares consultants of the Company or any of its Subsidiaries or pay any amount not required to be paid to any such individual, (B) grant, accelerate or modify the period of exercisability or vesting of equity compensation awards, (C) establish, adopt, enter into or amend any collective bargaining agreement, or any other contract or work rule or practice with any labor union, labor organization or works council, other than in the ordinary course of business consistent with past practice, (D) without complying fully with the notice requirements and other requirements of the WARN Act, effectuate
(1) a plant closing as defined in the WARN Act affecting any site of employment or one or more facilities or operating units within any site of employment of the Company, (2) a mass layoff as defined in the WARN Act affecting any site of employment of the Company, or (3) any similar action under the WARN Act requiring notice to employees in the event of an employment loss or layoff, (E) establish, adopt, enter into, materially amend or terminate any Company Subsidiaries' capital stockPlan or any plan, contract, policy or program that would be a Company Plan if in effect as of the date of this Agreement, or (F) fund (or agree to fund) any compensation or benefits under any Company Plan, including through a “rabbi” or similar trust;
(dv) neither the Company nor any of its Subsidiaries will incur, assume, guarantee or otherwise become liable for, or modify in any material respect, the terms of any Indebtedness, including any Indebtedness under the existing revolving credit facilities of the Company, other than (A) guarantees by the Company of Indebtedness of its wholly owned Subsidiaries or guarantees by Company Subsidiaries of Indebtedness of the Company and (B) Indebtedness of a Company Subsidiary payable to the Company or a wholly owned Company Subsidiary; provided that nothing contained herein shall prohibit the Company and its Subsidiaries from (i) obtaining surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice in an aggregate principal amount not to exceed $50,000,000 individually or $150,000,000 in the aggregate, (ii) obtaining performance letters of credit for the benefit of commercial counterparties in the ordinary course of business consistent with past practice in an aggregate principal amount not to exceed $35,000,000 individually or $70,000,000 in the aggregate; provided that the Company may (x) issue letters of credit to replace performance letters of credit that are outstanding as of the date hereof or sell any (y) issue letters of its capital stock credit (whether performance or any optionsfinancial letters of credit) to replace cash deposits, warrants with third party insurance carriers or otherwise, provided that the associated cash on deposit is returned to the Company, and such letters of credit shall not be subject to, or included in, the individual and aggregate limitations, or (iii) incurring other rights Indebtedness for borrowed money in the ordinary course of business consistent with past practice in an aggregate principal amount not to purchase any such shares or any securities convertible into or exchangeable for such sharesexceed $10,000,000 in the aggregate;
(evi) neither the Company nor any of Company its Subsidiaries shall: (i) incur or assume any long-term Indebtednesswill, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by for transactions among the Company and its wholly owned Subsidiaries or any of Company Subsidiariesamong the Company’s wholly owned subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to Person in the Guarantors Disclosure Schedulean aggregate principal amount greater than $5,000,000;
(fvii) neither the Company nor any of its Subsidiaries will make, commit to make or authorize any capital expenditure or research and development expenditure, other than (i) capital expenditures associated with reimbursable commercial contracts where substantially all of the cost of such expenditures is billable to the customer and (ii) capital expenditures and research and development expenditures in the amounts and in accordance with the schedule set forth in the Company’s existing capital budgets for fiscal 2012 and 2013 (including for purposes of the 2013 budget any rollover amount from the 2012 budget), copies of which are set forth in Section 5.1(vii) of the Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liensDisclosure Letter;
(gviii) neither the Company nor any of Company its Subsidiaries shall cancel any Indebtedness;
will (hA) neither the Company nor any of Company Subsidiaries shall be a party to any acquisitionrelease, mergerassign, spin-offcompromise, consolidationpay, purchase of stock or interest in any corporationdischarge, partnershipwaive, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officerssettle, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officersettle, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its Action (including any Action relating to this Agreement or the Merger) or other rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the release, assignment, compromise, payment, discharge discharge, waiver, settlement or satisfaction of claims, liabilities or obligations incurred in the ordinary course of business and consistent with past practicepractice that involve amounts not to exceed (in excess of third party insurance proceeds actually received or agreed in writing to be paid by third party insurance carriers) $10,000,000 individually or $50,000,000 in the aggregate that (x) do not require any actions or impose any restrictions on the business or operations of the Company or any of its Subsidiaries or impose any other injunctive or equitable relief, (y) provide for the complete release of claims, liabilities the Company and its Subsidiaries of all claims and (z) do not provide for any admission of liability by the Company or obligations reflected or reserved against inany of its Subsidiaries, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course (B) waive any claims of businesssubstantial value;
(oix) neither the Company nor any of its Subsidiaries will, except for transactions among the Company and its wholly owned Subsidiaries shall (i) change or among the Company’s wholly owned Subsidiaries, directly or indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets (including stock or other ownership interests of its Subsidiaries or of any other Person and including transfers of project equipment) (collectively, “Company Transfers”), other than sales of property and/or assets in the accounting methods used by it unless required by French GAAP or ordinary course of business consistent with past practice at not less than fair market value for consideration not greater than $17,500,000 individually and $62,500,000 in the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaseraggregate;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(qx) neither the Company nor any of Company its Subsidiaries shall take, or agree to or commit to take, any action that would or is reasonably likely to result in will change any of the conditions to the Closing set forth accounting methods, principles or practices used by it unless required by a change in ARTICLE VII not being satisfied, GAAP or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; andLaw;
(rxi) neither the Company nor any of its Subsidiaries will (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization (other than this Agreement), (B) except for tax-free transactions among the Company and its wholly owned Subsidiaries shall or among the Company’s wholly owned subsidiaries, acquire by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or acquire any capital stock or assets of any Person, except for acquisitions, purchases, mergers or consolidations -50- at or below fair market value for consideration not exceeding $25,000,000 in the aggregate, (C) take or omit to take any action that would cause any material Intellectual Property Rights, including with respect to any registrations or applications for registration, to lapse, be abandoned or canceled, or fall into the public domain, other than actions or omissions in the ordinary course of business consistent with past practice and not otherwise in violation of this Section 5.1 or (D) except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned subsidiaries, enter into a joint venture or partnership or similar third-party business enterprise;
(xii) except as is required to effectuate any transaction that is otherwise expressly permitted by this Section 5.1 or Section 5.1 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries will enter into any Contract which would be a Material Contract, or amend or terminate any Material Contract in any material respect, or waive or grant any release or relinquishment of any material rights under, or renew, any such Material Contract, except that (A) the Company and its Subsidiaries may enter into reimbursable or unit price customer Contracts in the ordinary course of business consistent with past practice, (B) the Company and its Subsidiaries may enter into fixed price customer Contracts under which the Company and its Subsidiaries may receive payments in excess of $300,000,000 during the life of the Contract in the ordinary course of business consistent with past practice and (C) the Company and its Subsidiaries may enter into Contracts that are described in clause (v) of Section 3.10(a) in the ordinary course of business consistent with past practice; provided that nothing in this Section 5.1 shall prevent the Company or any of its Subsidiaries from entering into, amending, terminating, waiving or granting any release or relinquishment of any material rights under, or renewing any Contract where the Company has determined that seeking Acquiror’s consent to take such action or the communications related thereto would be reasonably likely to be a violation of any applicable Law;
(xiii) except to the extent that such actions do not result in additional material taxation payable by the Company or its Subsidiaries, neither the Company nor any of its Subsidiaries will make, change or revoke any material Tax election; settle or compromise any material Tax liability or refund; enter into any closing agreement within the meaning of Section 7121 of the Code (or any comparable provision of state, local or foreign Law) with respect to any material Tax Matter; agree to any adjustment of any material Tax attribute; change any method of Tax accounting or Tax period; execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes; file any material amended Tax Return; or request any material Tax ruling;
(xiv) neither the Company nor any of its Subsidiaries will make any Person (other than Acquiror) or action (other than the Transactions) not subject to, or exempt such Person or action from, the provision of Sections 12:132–12:134 of the LBCL or any other potentially applicable anti-takeover or similar statute or regulation, or the provisions of Article VIII of the Company’s Restated Articles of Incorporation;
(xv) neither the Company nor any of its Subsidiaries will enter into any new line of business, it being understood that organic growth of an existing line of business shall not constitute entry into a new line of business;
(xvi) neither the Company nor any of its Subsidiaries will fail to duly and timely file all material reports and other material documents required to be filed with all Governmental Entities and other authorities (including the New York Stock Exchange), subject to extensions permitted by applicable Law;
(xvii) neither the Company nor any of its Subsidiaries will permit any material insurance policy to terminate or lapse without replacing such policy with comparable coverage, or amend or cancel any material insurance policy;
(xviii) neither the Company nor any of its Subsidiaries will take, or knowingly omit to take, any action (including but not limited to any acquisition or entering into any business combination) which is intended to or which could reasonably be expected to adversely affect the ability of any of the parties hereto to perform its covenants and agreements under this Agreement or otherwise prohibit or materially delay satisfaction of the conditions to this Agreement or consummation of the Merger or other Transactions; and
(xix) neither the Company nor any of its Subsidiaries will enter into an agreement, contractContract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, do any of the foregoing. 40.
Appears in 1 contract
Samples: Transaction Agreement (Chicago Bridge & Iron Co N V)
Interim Operations of the Company. Each of the Guarantors shall procure The Company agrees that, and covenant and agree that, after during the period from the date hereof of this Agreement to the earlier of (x) termination of this Agreement in accordance with Section 8.1, and until the Initial Closing Date(y) Closing, except as (i) as expressly provided in otherwise contemplated by this Agreement or any Ancillary Agreement, or (ii) as may required by applicable Law (including COVID-19 Measures), (iii) described in Section 5.1 of the Schedules or (iv) consented to by Parent (which consent shall not be agreed in writing by Purchaser:unreasonably withheld, conditioned or delayed):
(a) the Company shall, and shall cause each Company Subsidiary to, conduct its business in the Ordinary Course in all material respects and, to the extent consistent with the foregoing, use its commercially reasonable efforts to (i) preserve intact its present business organization, (ii) keep available the services of its officers and key employees and (iii) maintain existing relationships with its Material Customers, Material Suppliers and other material business relationships with it; and
(b) the Company shall not, and shall cause each Company Subsidiary not to, effect any of the following:
(i) make any change in or amendment to its Organizational Documents (other than to effectuate the A&R Charter and the A&R Bylaws);
(ii) issue or sell, or authorize to issue or sell, any membership interests, shares of its capital stock or any other ownership interests, as applicable, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any shares of its membership interests, capital stock or any other ownership interests, as applicable (for the avoidance of doubt, this Section 5.1(b)(ii) shall not prevent (a) a Company and Optionholder from otherwise exercising any or all vested Company Subsidiaries shall be conducted Options held by such Company Optionholder in accordance with the applicable award agreement), (b) the granting of Company Options to employees, officers or directors in the same manner Ordinary Course or (c) a Company Warrantholder from otherwise exercising any or all Company Warrants held by such Company Warrantholder in accordance with the applicable warrant agreement;
(iii) split, combine, redeem or reclassify, or purchase or otherwise acquire, any membership interests, shares of its capital stock or any other ownership interests, as heretofore conducted and applicable;
(iv) sell, lease, license, permit to lapse, transfer, abandon or otherwise dispose of any of its properties or assets (including any Company Owned Intellectual Property) that are material to its business, other than (A) pursuant to Contracts to which the Company or any of its Subsidiaries are a party that are in a prudent manner effect as of the date of this Agreement, (en bon père de famille), B) non-exclusive licenses of Company Owned Intellectual Property granted in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company (C) sales or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes dispositions in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for (D) sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $2,500,000 in the conversion aggregate;
(v) amend in any adverse respect or terminate any Company Material Contract or Lease;
(vi) (A) incur any Indebtedness in excess of certain bonds as contemplated by this Agreement; $2,500,000, other than short-term Indebtedness or letters of credit incurred in the Ordinary Course or borrowings under existing credit facilities, or (ivB) assume, guarantee, endorse make any loans or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of advances to any other Person;
(vii) Except as required under the terms of any Company Benefit Plan set forth on Section 3.16(a) of the Schedules or any Company Material Contract set forth on Section 3.12(a)(iii) of the Schedules, in each case, in effect as of the date hereof (A) grant to any employee, officer, director or independent contractor of the Group Companies any increase in compensation or benefits, except as described Ordinary Course annual or merit increases, (B) adopt or establish any new compensation or benefit plans or arrangements, or amend or terminate, or agree to amend or terminate, any existing Company Benefit Plans (other than amendments to group welfare plans made in the Guarantors Disclosure Schedule as being Ordinary Course in conjunction with annual renewals or group welfare benefits), (C) accelerate the ordinary course time of business and consistent with past practice and except payment, vesting or funding of any compensation or benefits under any Company Benefit Plan (including any plan or arrangement that would be a Company Benefit Plan if it was in effect on the date hereof), (D) terminate (other than for cause), furlough or temporarily lay off the conversion employment or service of certain bonds as contemplated hereinany employee or independent contractor whose total annual base compensation exceeds $300,000, (E) hire any or engage employee or independent contractor whose total annual base compensation exceeds $300,000; or (v) make any loans, advances or capital contributions to, or investments in, any other Person; (viF) enter into any material commitment new employment agreement with any employee having an annual base salary in excess of $300,000 (other than (x) pursuant to Section 5.17 of this Agreement and (y) agreements that can be terminated upon notice without cost, penalty or transaction (including any capital expenditure or purchase, sale or lease of assets or real estateseverance payment); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(a) make, change or rescind any material Tax election, (b) settle or compromise any claim, notice, audit report or assessment in respect of any material Taxes, (c) file any amended material Tax Return or claim for a material Tax refund, (d) surrender any right to claim a refund of material Taxes, (e) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, or closing agreement related to any Tax (excluding any agreement entered into the Ordinary Course and not primarily related to Taxes), (f) neither the Company nor fail to pay any of Company Subsidiaries shall permit income or allow any of their properties or assets (realother material Tax that becomes due and owing, personal or mixedother than Taxes being contested in good faith through appropriate proceedings, tangible or intangible) to be subjected to any liens;
and for which adequate reserves have been established in accordance with GAAP, (g) neither the Company nor request any of Company Subsidiaries shall cancel any Indebtedness;
Tax ruling from a competent authority or, (h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change except in the compensation payable or to become payable to any of its officersOrdinary Course, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim extension or assessment relating to Taxes or any waiver of the statute of limitations for period applicable to any such material Tax claim or assessment, without prior consent of the Purchaser;
(pix) cancel or forgive any Indebtedness in excess of $250,000 owed to the Company;
(x) except for as may be required by Law or GAAP, make any material change in the existing agreements which have been disclosed neither financial or Tax accounting methods, principles or practices of the Company nor any of Company Subsidiaries shall pay(or change an annual accounting period);
(xi) unless required by applicable Law, loan or advance any amount to(i) modify, or sellextend terminate, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) tonegotiate, or enter into any collective bargaining agreement, works council agreement or arrangement withany other Contract with any labor union, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Companyworks council, or other labor organization, or (ii) recognize or certify any labor union, labor organization, works council, or other labor organization, or group of employees, as the Company Subsidiaries' past practicebargaining representative for any employees of the Group Companies;
(qxii) neither implement or announce any “mass layoffs”, “plant closings,” reductions in force, or other actions that would reasonably be expected to trigger notice the federal Worker Adjustment and Retraining Notification Act of 1988 or any similar Law (collectively, the “WARN Act”);
(xiii) take affirmative steps to waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor with base annual compensation in excess of $300,000;
(xiv) grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Properties;
(xv) declare, set aside or pay any dividend or make any other distribution;
(xvi) make any material change to any of the cash management practices of the Company nor or any Company Subsidiary, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable;
(xvii) waive, release, assign, settle or compromise any material rights, claims, suits, actions, audits, reviews, hearings, proceedings, investigations or litigation (whether civil, criminal, administrative or investigative) against the Company Subsidiaries shall takeor any Company Subsidiary other than waivers, releases, assignments, settlements or compromises that do not exceed $500,000 individually or $1,000,000 in the aggregate;
(xviii) make or incur any capital expenditures, except for capital expenditures (A) in the Ordinary Course or (B) in an amount not to exceed $2,500,000 individually or $5,000,000 in the aggregate;
(xix) buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (A) inventory and supplies in the Ordinary Course, or agree (B) other assets in an amount not to exceed $500,000 individually or commit $2,000,000 in the aggregate;
(xx) enter into any new line of business;
(xxi) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization. other than the Merger and the transactions contemplated hereunder;
(xxii) fail to take, use commercially reasonable efforts to maintain existing insurance policies or comparable replacement policies consistent with levels maintained by the Company and each Company Subsidiary on the date of this Agreement;
(xxiii) take any action (other than actions explicitly permitted by this Agreement) that would or is reasonably likely to result in any prevent, delay or impede the consummation of the conditions to Merger or the Closing set forth in ARTICLE VII not being satisfiedother transactions contemplated by this Agreement; or
(xxiv) authorize any of, or would make commit or agree to take any representation or warranty of Guarantors contained herein inaccurate in any respect at, or as of any time prior toof, the Closing Date, or that would materially impair foregoing actions in respect of which it is restricted by the ability provisions of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Software Acquisition Group Inc. III)
Interim Operations of the Company. Each The Company agrees that, during the period from the date of this Agreement through the earlier of the Guarantors shall procure that, and covenant and agree that, after Acceptance Time or the date hereof and until the Initial Closing Dateof termination of this Agreement, except except: (i) as expressly provided to the extent Parent shall otherwise consent in this Agreementwriting (which consent shall not be unreasonably withheld, conditioned or delayed); (ii) as may be agreed set forth in writing by Purchaser:
(a) the business Part 5.1 of the Company and Company Subsidiaries shall be conducted in the same manner Disclosure Schedule; (iii) as heretofore conducted and in a prudent manner expressly permitted or required by this Agreement; or (en bon père de famille), in the ordinary course, and each of the Guarantorsiv) as required by any applicable Legal Requirement, the Company and Company Subsidiaries shall use conduct its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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 practicepractice and use its commercially reasonable efforts to: (A) maintain and preserve intact its business organization; (B) maintain in effect all necessary Governmental Authorizations; (C) keep available the services of its key executive officers and key employees on commercially reasonable terms; and (D) preserve its existing relationships with key vendors, key customers and other Persons with whom the Company has a significant business relationship. Without limiting the generality of the foregoing, except: (1) to the extent Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed); (2) as set forth in Part 5.1 of the Company Disclosure Schedule; (3) as expressly permitted or required by this Agreement; or (4) as required by any applicable Legal Requirement, the Company shall not:
(a) amend the Company’s Organizational Documents;
(b) except as set forth in Section 6.1 (b) split, combine or reclassify any shares of the Guarantors Disclosure Schedule neither Company’s capital stock or issue or authorize the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations issuance of any Governmental Entityother securities in lieu of or in substitution for any shares of its capital stock;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make aside or pay any dividend; dividend (whether payable in cash, stock or purchase property) or redeem make any other distribution with respect to any shares of the Company or Company Subsidiaries' Company’s capital stock;
(d) neither form any Subsidiary or acquire any equity interest in any other Entity or acquire, including by merging or consolidating with, or purchasing all or substantially all of the Company nor assets of, any of Company Subsidiaries shall issue or sell any of its capital stock Entity or any options, warrants business or other rights to purchase any such shares or any securities convertible into or exchangeable for such sharesdivision thereof;
(e) neither issue, grant, deliver or sell any shares of (or securities convertible or exchangeable for, or options, warrants or rights to acquire, any shares of) its capital stock or other equity or voting securities of the Company nor any or rights the value of Company Subsidiaries shallwhich is based on equity securities of the Company, other than: (i) incur Company Shares issuable upon exercise of Company Options, upon the vesting of Company RSUs or assume upon the conversion of Convertible Debt, in each case outstanding on the date hereof; and (ii) pursuant to the Company ESPP;
(f) sell, transfer, lease or license to any long-term Indebtednessthird party, or except encumber or subject to any lien, any material assets of the Company, other than: (i) in the ordinary course of business consistent with past practice; (ii) pursuant to written contracts or commitments existing as of the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business; or (iii) as security for any borrowings permitted by Section 5.1(h);
(g) repurchase, incur redeem or assume short-term Indebtedness exceeding twenty-five thousand euros otherwise acquire any Company Shares, Company Options, Company RSUs or Convertible Debt, except for (€25,000i) in Company Shares repurchased from employees or consultants or former employees or consultants of the aggregate from Company pursuant to the date hereof until the Initial Closing; exercise of repurchase rights and (ii) pay, repay, discharge, purchase, repurchase Company Shares surrendered by employees or satisfy any Indebtedness issued consultants or guaranteed by former employees or consultants of the Company or any in connection with the vesting of Company SubsidiariesRSUs;
(h) incur any indebtedness for borrowed money or guarantee any such indebtedness, issue or sell any debt securities, enter into any swap or hedging transaction or enter into any “keep well” or other agreement to maintain any financial statement condition of another Person, except as required by for: (i) borrowings pursuant to credit facilities in existence on the terms thereof; (iii) modify the terms date of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; and (ivii) 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 the Guarantors Disclosure Schedule as being purchase money financings and capital leases entered into in the ordinary course of business and consistent with past practice and except for in an amount not exceeding $150,000 individually or $500,000 in the conversion of certain bonds as contemplated herein; aggregate;
(vi) make or forgive any loans, advances or capital contributions to, or investments in, any other Person; (vi) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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 otherwisePerson;
(j) neither the Company nor Company Subsidiaries shall make adopt, amend or terminate any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (i) pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to plans of the Company; enter into any existing planemployment, consulting, or similar agreement or arrangement to any officeroffer letter providing for annual compensation in excess of $200,000; increase the compensation or fringe benefits of, director, employee or Affiliate or pay or agree to pay award any bonus to, or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) adopt or pay, grant, issuemodify or pay any severance, accelerate change of control or accrue salary termination benefits or other payments increase any severance or benefits pursuant to termination benefit obligations of, any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement current or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any former director, officer, employee, agent or consultantindependent contractor of the Company whose annual compensation exceeds $200,000, whether past (in each case, except for: (i) amendments determined by the Company in good faith to be required to comply with applicable Legal Requirements; (ii) increases or present, amounts required pursuant to any contract or benefit plan of the Company in effect on the date hereof; and (iii) amend any such existing plan, agreement compensation increases and bonuses paid or arrangement granted to non-executive officers in a manner inconsistent the ordinary course of business consistent with the foregoingpast practice);
(lk) neither the Company nor any of Company Subsidiaries shall enter into any collective bargaining agreement, except as required by applicable Legal Requirements;
(i) materially amend or prematurely terminate any Contract Material Contracts; or transaction outside (ii) enter into any contract that would, if entered into prior to the date hereof, constitute a Material Contract, other than in the ordinary course of business;
(m) neither the Company nor waive, release or assign any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; material rights or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third partyclaims;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy change any of its claims, liabilities methods of accounting or obligations accounting practices (absolute, accrued, asserted or unasserted, contingent or otherwise)including with respect to taxes) in any material respect, other than the paymentas required by GAAP;
(o) make, discharge revoke or satisfaction change any tax election (except in the ordinary course of business and or consistent with the Company’s past practicepractices), settle or compromise any material tax liability or refund, amend any tax return or extend or waive the statute of claimslimitations with respect to any taxes of the Company;
(p) make any capital expenditure that is not contemplated by the capital expenditure budget set forth in Part 5.1(p) of the Company Disclosure Schedule (a “Non-Budgeted Capital Expenditure”), liabilities except that the Company may make any Non-Budgeted Capital Expenditure that, when added to all other Non-Budgeted Capital Expenditures made by the Company since the date of this Agreement, would not exceed $1,000,000 in the aggregate;
(q) other than as permitted by Sections 1.3(d) and 5.2, adopt or obligations reflected put into effect a plan of complete or reserved against inpartial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company, or contemplated byenter into any new line of business;
(r) settle any Legal Proceeding (other than any Legal Proceeding described in Section 5.13, which shall be subject to the Company Financial Statements or incurred since the Company Balance Sheet date provisions of Section 5.13), except for any settlement in the ordinary course of business;business consistent with past practice that solely requires payment by the Company (net of insurance proceeds received) of less than $500,000 in any individual settlement and that does not impose any material restrictions on or changes to the business or operations of, or the admission of wrongdoing by, the Company; or
(os) neither the Company nor any of Company Subsidiaries shall (i) change agree or commit to take any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP or actions described in clauses “(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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
a)” through “(r) neither the Company nor any )” of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40this sentence.
Appears in 1 contract
Samples: Merger Agreement (Xenoport Inc)
Interim Operations of the Company. Each of (a) The Company and the Guarantors shall procure that, and Seller covenant and agree that, after from the date hereof until the Closing Date the Company shall operate the business in accordance with its ordinary course and past practice. In addition during the period commencing on the date hereof and until the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business each of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner Seller shall, except to the extent the Buyer specifically gives its prior written consent to the contrary:
(en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall i) use its best commercially reasonable efforts to preserve the intact its business organization and the goodwill of the Company its customers, suppliers and Company Subsidiaries intact, others having business relations with it;
(ii) use its commercially reasonable efforts to keep available to Buyer the services of the current officers Company’s officers, employees and employees agents;
(iii) promptly furnish to Buyer a copy of any correspondence received from or delivered to any governmental authority;
(iv) maintain and keep its properties and assets in the Company same repair and Company Subsidiaries condition as they were on the date of this Agreement;
(v) continue and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes approval process in the ordinary course of business with respect to the Company Products and any products being developed by the Company; and
(vi) continuously maintain insurance coverage substantially equivalent to the insurance coverage in existence on the date of this Agreement.
(b) Additionally, during the period from the date of this Agreement to the Closing Date, except with the prior consent of Buyer, the Company shall not and the Seller shall not permit the Company to, directly or indirectly:
(i) amend or otherwise change the Company’s Organizational Documents;
(ii) issue, sell or authorize for issuance or sale, shares of any class of its securities (including, but not limited to, by way of stock split or dividend) or any subscriptions, options, warrants, rights or convertible securities, or enter into any agreements or commitments of any character obligating it to issue or sell any such securities;
(iii) redeem, purchase or otherwise acquire directly or indirectly any shares of its capital stock or any option, warrant or other right to purchase or acquire any such shares;
(iv) declare or pay any dividend or other distribution (other than dividends or distributions payable solely in cash);
(v) sell, transfer, surrender, abandon or dispose of any of its assets or property rights (tangible or intangible), except for sales or dispositions of inventory in the ordinary course of business consistent with past practice;
(bvi) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor grant, make or subject itself or any of Company Subsidiaries shall amend their certificates of incorporation its assets or by-laws or other constituent or governing document, properties to the extent any such modification is not required by law, or by the rules or regulations of any Governmental EntityLien;
(cvii) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declarecreate, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtednessliability or indebtedness which would remain with the Company after the Closing Date, or except in the ordinary course of businessbusiness consistent with past practice;
(viii) enter into, incur amend or assume short-term Indebtedness exceeding twenty-five thousand euros terminate any Company Contract;
(€25,000ix) commit to make any capital expenditures in the aggregate from the date hereof until the Initial Closing; excess of Thirty Thousand United Stated Dollars (iiUS$30,000) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed which would be payable by the Company after the Closing Date;
(x) grant any guaranty;
(xi) waive, release, assign, settle or compromise any of Company Subsidiaries, material claim or litigation;
(xii) except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liabilityLaw, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in increase the compensation payable or to become payable to employees or grant any of its officersrights to severance or termination pay to, directors, employees, agents or consultants enter into any employment or to Persons providing management services, or, except for the employment severance agreement with Xxxxx Galleraany employee or establish, adopt, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharingcollective bargaining, bonus, extra profit sharing, thrift, compensation, incentivestock option, restricted stock, pension, retirement, deferred compensation, stock purchaseemployment, stock option, stock appreciation right, group insurancetermination, severance pay, retirement or other employee benefit plan, agreement agreement, trust, fund, policy or arrangement, or any employment or consulting agreement with or arrangement for the benefit of any director, officer, employee, agent or consultant, whether past or present, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(lxiii) neither the Company nor acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any of Company Subsidiaries shall enter into interest in any corporation, partnership, other business organization, Person or terminate any Contract division thereof or transaction outside the ordinary course of businessany assets;
(mxiv) neither alter the Company nor manner of keeping its books, accounts or records, or change in any of Company Subsidiaries shall (i) grant to any third party a license to manner the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third partyaccounting practices therein reflected;
(nxv) neither the Company nor make any of Company Subsidiaries shall payTax election or settle or compromise any material federal, repurchasestate or local or federal income Tax Liability;
(xvi) change its accounting practices, discharge methods or satisfy assumptions or write down any of its claimsassets;
(xvii) enter into any commitment or transaction, liabilities or obligations (absolutewhich would survive the Closing Date, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction except 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 Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(qxviii) neither the accelerate, terminate, modify or cancel any Company nor Contract;
(xix) grant any license or sublicense of Company Subsidiaries shall take, any right under or agree with respect to any Intellectual Property or commit disclose any proprietary or confidential information to take, any third party who is not bound by confidentiality undertakings;
(xx) take or omit to take any action that which would or is reasonably likely to result in render any of the conditions to Company’s or any of the Closing set forth in ARTICLE VII not being satisfiedSeller’s representations or warranties untrue or misleading, or which would make any representation or warranty of Guarantors contained herein inaccurate in any respect at, or as be a breach of any time prior to, of the Closing Date, Company’s or that would materially impair the ability of Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; andSeller’s covenants;
(rxxi) neither the Company nor take any of Company Subsidiaries shall enter into any agreementaction which could reasonably be expected to have a Material Adverse Effect; or
(xxii) agree, contract, commitment or arrangement (whether in writing or otherwise) , to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each Except to the extent Parent specifically gives its prior written consent (which may be withheld in its sole discretion), the Company shall, operate its business only in the ordinary and usual course consistent with past practices and (a) use its commercially reasonable best efforts to preserve intact its business organization and the goodwill of its customers, suppliers and others having business relations with it, (b) use its commercially reasonable best efforts to keep available to Parent the Guarantors shall procure thatservices of its present officers, employees and covenant agents, (c) promptly furnish to Parent a copy of any correspondence received from or delivered to any governmental authority or any stock exchange, (d) continue and agree thatmaintain the approval process in the ordinary course of registrations with respect to Products being developed, after manufactured or sold by the Company, (e) maintain and keep its properties and assets in good repair and condition, (f) continuously maintain insurance coverage substantially equivalent to the insurance coverage in existence on the date hereof and until (g) use its good faith efforts to prevent any non-Accredited Investor from exercising any options or warrants of the Initial Closing DateCompany prior to the Effective Time. Additionally, during the period from the date of this Agreement to the Effective Time, except with the prior consent of Parent or as contemplated by any other provision of this Agreement, the Company shall not, directly or indirectly, (i) as expressly provided in this Agreement, amend or otherwise change its Certificate of Incorporation or equivalent organizational documents; (ii) as may be agreed except for the issuance of securities in writing by Purchaser:
(a) the business satisfaction of the brokerage commission payable by the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner to Corporate Development Specialists, Inc. (en bon père de famillewhich is an Accredited Investor), in the ordinary courseissue, and each sell or authorize for issuance or sale, shares of the Guarantorsany class of its securities (including, the Company and Company Subsidiaries shall use but not limited to, by way of stock split or dividend) or any subscriptions, options, warrants, rights or convertible securities, or enter into any agreements or commitments of any character obligating it to issue or sell any such securities; (iii) redeem, purchase or otherwise acquire, directly or indirectly, any shares of its best efforts capital stock or any option, warrant or other right to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company purchase or Company Subsidiaries, acquire any such shares; (iv) recommend to the end its shareholders that the goodwill and ongoing business stockholders declare or pay any dividend or other distribution (whether in cash, stock or other property) with respect to its capital stock; (v) sell, transfer, surrender, abandon or dispose of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchaseits assets or property rights (tangible or intangible), 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;
practices; (bvi) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor grant or make any of Company Subsidiaries shall amend their certificates of incorporation Lien or by-laws subject itself or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock properties or assets to any optionsLien of any kind other than Permitted Liens; (vii) create, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtednessliability or indebtedness, or except in the ordinary course of businessbusiness consistent with past practices, incur but in no event in an aggregate amount exceeding $50,000 more than is shown on the May 31, 2000 Balance Sheet; (viii) make or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) commit to make any capital expenditures in excess of $50,000 in the aggregate from the date hereof until the Initial Closingaggregate; (iiix) pay, repaybecome subject to any Guaranty; (x) apply any of its assets to the direct or indirect payment, discharge, purchase, repurchase satisfaction or satisfy reduction of any Indebtedness issued amount payable directly or guaranteed by indirectly to or for the Company benefit of any Principal Stockholder or any Affiliate thereof or to the prepayment of Company Subsidiaries, except as required by the terms thereofany such amounts or engage in any transactions with any Affiliate; (iiixi) modify increase the terms of compensation payable or to become payable to directors, officers or employees (including, without limitation, any Indebtedness such increase pursuant to any Plan or other liabilityotherwise), other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (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 the Guarantors Disclosure Schedule as being increases in the ordinary course of business and consistent with past practice and except for in salaries or wages of employees of the conversion Company who are not officers of certain bonds as contemplated herein; (v) make the Company or grant any loans, advances rights to severance or capital contributions termination pay to, or investments inenter into any employment or severance agreement with, any director, officer or other Personemployee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law or the terms of any existing collective bargaining agreement; (vixii) enter into any material commitment agreement which would be a Company Contract, or transaction (including amend or terminate any capital expenditure or purchase, sale or lease of assets or real estate)existing Company Contract except for Company Contracts which terminate by their terms; (viixiii) write down the value of any inventory or write-off as uncollectibleacquire (including, any notes or accounts receivablewithout limitation, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, by merger, spin-off, consolidation, purchase consolidation or acquisition of stock or assets) any interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officersorganization, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, Person or any employment or consulting agreement with or for the benefit of any director, officer, employee, agent or consultant, whether past or present, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property division thereof or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)assets, other than the payment, discharge or satisfaction acquisitions of assets in the ordinary course of business and consistent with past practice; (xiv) alter the manner of keeping its books, of claims, liabilities accounts or obligations reflected or reserved against inrecords, or contemplated by, change in any manner the Company Financial Statements accounting practices therein reflected; (xv) enter into any commitment or incurred since the Company Balance Sheet date transaction other than in the ordinary course of business;
business consistent with past practices; (oxvi) neither the Company nor waive, release, assign, settle or compromise any of Company Subsidiaries shall claims or litigation; (ixvii) change make any Tax election or settle or compromise any federal, state or local or federal income Tax liability; (xviii) take or omit to take any action which would render any of the accounting methods used by it unless required by French GAAP Company's representations or the applicable Foreign GAAP warranties untrue 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount tomisleading, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate which would be a breach of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
's covenants; (qxix) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, take any action that would which could have a Material Adverse Effect; or is reasonably likely to result in any of the conditions to the Closing set forth in ARTICLE VII not being satisfied(xx) agree, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) , to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Samples: Merger Agreement (Ivax Corp /De)
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after After the date hereof and until prior to the Initial Closing Datetime the designees of Parent have been elected or appointed to, and shall constitute a majority of, the Board of Directors of the Company pursuant to Section 1.4 or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1, and except (i) as expressly provided in contemplated by this Agreement, or (ii) as may be set forth on Schedule 5.1 of the Disclosure Schedule or (iii) as agreed in writing by PurchaserParent:
(a) the business of the Company shall and Company shall cause its Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), to carry on their respective businesses in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither ;
(b) neither the Company nor any of its Subsidiaries shall, directly or indirectly, amend its certificate of incorporation or by-laws or similar organizational documents;
(c) Representatives of the Company and its Subsidiaries shall institute confer at such times as Parent may reasonably request with one or more Representatives of Parent to report material operational matters and the general status of ongoing operations;
(d) neither the Company nor any new methods of purchaseits Subsidiaries shall: (i)(A) declare, saleset aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Company's capital stock or that of its Subsidiaries, except that a wholly-owned Subsidiary of the Company may declare and pay a dividend or make advances to its parent or the Company or (B) redeem, purchase or otherwise acquire directly or indirectly any of the Company's capital stock or that of its Subsidiaries; (ii) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of the Company or its Subsidiaries, other than Shares issued upon the exercise of Options outstanding on the date hereof in accordance with the Option Plans as in effect on the date hereof; or (iii) split, combine or reclassify the outstanding capital stock of the Company or of any of the Subsidiaries of the Company;
(e) except as permitted by this Agreement, neither the Company nor any of its Subsidiaries shall acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof (including entities which are Subsidiaries of the Company or any of the Company's Subsidiaries) or (B) any assets, including real estate, except purchases in the ordinary course of business consistent with past practice;
(f) neither the Company nor any of its Subsidiaries shall, except in the ordinary course of business and except as otherwise permitted by this Agreement, amend or terminate any Company Material Contract where such amendment or termination would have a Material Adverse Affect on the Company, or waive, release or assign any material rights or claims;
(g) neither the Company nor any of its Subsidiaries shall transfer, lease, managementlicense, accounting sell, mortgage, pledge, dispose of or operation encumber any property or engage in any transaction or activity assets other than minor changes in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(dh) neither the Company nor any of its Subsidiaries shall: (A) enter into any employment or severance agreement with or grant any severance or termination pay to any officer, director or key employee of the Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants its Subsidiaries; or other rights (B) hire or agree to purchase hire any such shares new or any securities convertible into additional executives or exchangeable for such sharessenior officers;
(ei) neither the Company nor any of its Subsidiaries shall, except in the ordinary course of business and except as required to comply with applicable Law or contracts disclosed in the Company's SEC Documents or otherwise disclosed to Parent or expressly provided in this Agreement, (A) adopt, enter into, terminate, amend or increase the amount or accelerate the payment or vesting of any benefit or award or amount payable under any Benefit Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, except to the extent necessary to coordinate any such Benefit Plans with the terms of this Agreement, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee, (C) pay any benefit not provided for under any Benefit Plan, (D) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder);
(j) neither the Company nor any of its Subsidiaries shall: (iA) incur or assume any long-term Indebtednessdebt, or except in the ordinary course of business, incur or assume any short-term Indebtedness exceeding twenty-five thousand euros (€25,000) indebtedness in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and amounts not consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreementpractice; (ivB) materially increase its bank debt; (C) 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 the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated hereinpractice; (vD) make any loans, advances or capital contributions to, or investments in, any other PersonPerson (other than to wholly owned Subsidiaries of the Company or customary loans or advances to employees in the ordinary course of business and consistent with past practice); or (viE) enter into any material commitment or transaction (including any capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to except in the Guarantors Disclosure Scheduleordinary course of business consistent with past practice;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company its Subsidiaries shall (i) pay or make change 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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoingaccounting methods used by it unless required by GAAP;
(l) neither the Company nor any of Company Subsidiaries shall enter into or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company its Subsidiaries shall 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 of any such claims, liabilities or obligations, 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 Company Financial Statements consolidated financial statements (or incurred since the notes thereto) of the Company Balance Sheet date and its consolidated Subsidiaries; or, except in the ordinary course of businessbusiness consistent with past practice, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party;
(om) neither the Company nor any of Company its Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, will 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any an agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do, do any of the foregoing. 40; and
(n) neither the Company nor any of its Subsidiaries shall take any action that would result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Offer set forth in Annex A not being satisfied (subject to the Company's right to take action specifically permitted by Section 5.5).
Appears in 1 contract
Interim Operations of the Company. Each of the Guarantors shall procure The Company agrees that, and covenant and agree that, after during the period from the date hereof and until through the Initial Closing Dateearlier of the Acceptance Time or the date of termination of this Agreement, except (i) as expressly provided to the extent Parent shall otherwise consent in this Agreementwriting (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) as set forth in the Company Disclosure Schedule, (iii) as contemplated or permitted by this Agreement, (iv) as may be agreed in writing necessary or appropriate to carry out the Transactions, (v) as may on the advice of outside counsel be required to facilitate compliance with any Law or Contract, or (vi) as required by Purchaser:
the rules or regulations of NASDAQ, (ax) the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to conduct its business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of ; provided that the Guarantors, parties agree that the Company and its Subsidiaries may continue any changes in their respective business practices adopted prior to the date hereof to address and adapt to the coronavirus (COVID-19) pandemic and the Company Subsidiaries shall use its best efforts may take such further actions as it deems reasonably advisable or necessary to preserve (A) protect the business organization health and safety of the Company’s or Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customersSubsidiary’s employees, suppliers, creditors, business partners customers and others other individuals having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business any Subsidiary of the Company or (B) respond to third-party supply or service disruptions caused by the coronavirus (COVID-19) pandemic, and (y) the Company shall not, nor shall it permit any of its Subsidiaries shall to, do any of the following:
(a) amend the Company Certificate of Incorporation, the Company Bylaws or the Organizational Documents of any of the Company’s Subsidiaries (whether by merger, consolidation or otherwise);
(b) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, or enter into any agreement with respect to the voting of, any capital stock of any Acquired Company, other than (x) dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, consistent with past practice, and (y) distributions resulting from the vesting or exercise of Company Compensatory Awards that are outstanding on the date hereof, (ii) split, combine or reclassify any capital stock of the Acquired Companies, or (iii) purchase, redeem or otherwise acquire any Company securities, except for (x) acquisitions of shares of Company Common Stock by the Company in satisfaction of the applicable exercise price and/or withholding taxes with respect to any Company Compensatory Awards that are outstanding on the date hereof or granted in a manner not in violation of this Agreement, and (y) the acquisition of Convertible Notes deemed to occur upon conversion thereof in accordance with their terms;
(i) issue, deliver, sell, grant, pledge, transfer, subject to any Encumbrance (other than transfer restrictions arising under applicable Law) or dispose of any Company securities, other than (w) the issuance of shares of Company Common Stock upon the exercise or settlement of Company Compensatory Awards outstanding as of the date hereof or granted not in violation of this Agreement, in accordance with the terms of the applicable Company Compensatory Award, (x) the issuance of Company securities required to be unimpaired made pursuant to the terms of the Company ESPP, or (y) the delivery of shares of Company Common Stock upon conversion of Convertible Notes in accordance with their terms, or (ii) amend any term of any security of the Acquired Companies (in each case, whether by merger, consolidation or otherwise);
(d) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, each with respect to the Acquired Companies;
(e) except to the extent required pursuant to the terms of any Company Benefit Plan as in effect on the date of this Agreement that is not then out of compliance with applicable Law, (A) adopt, establish, enter into, terminate, amend or modify any material Company Benefit Plan, (B) increase the base compensation payable or to become payable to the Company’s employees at the Closing Date. Neither the Vice President level or above, (C) grant or amend any award under any Company nor Benefit Plan (including any of Company Subsidiaries shall institute any new methods of purchaseequity or equity-based compensation), sale, lease, management, accounting or operation remove or engage modify existing restrictions in any transaction Company Benefit Plan or activity awards made thereunder, (D) enter into any employment, change in control, severance, separation, retention or similar agreement with the Company’s employees or service providers (other than minor changes ordinary course offer letters and related confidentiality, assignment of invention agreements and similar agreements ancillary to employment not prohibited by clause (F) below), or enter into any consulting agreement other than in the ordinary course of business and that is not terminable on less than thirty (30) days’ notice without penalty, (E) take any action to accelerate the time of payment or vesting of any rights, compensation, benefits or funding obligations under any Company Benefit Plan or otherwise, (F) hire any employee at the Vice President level or above or terminate the employment of any such employee, other than for cause (as determined by the Company in its reasonable discretion consistent with past practice) or due to such employee’s death or disability or (G) make any material determination under any Company Benefit Plan that is inconsistent with the Company’s ordinary course of business or past practice;
(bf) except as set forth acquire any business, assets or capital stock of any Person or division thereof, whether in Section 6.1 whole or in part (b) and whether by purchase of the Guarantors Disclosure Schedule neither the Company nor any stock, purchase of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing documentassets, to the extent any such modification is not required by lawmerger, consolidation, or by otherwise), other than one or more acquisitions of assets or rights in the rules or regulations ordinary course of any Governmental Entitybusiness consistent with past practice that, individually, involve a purchase price of not more than $100,000;
(cg) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor enter into any of Company Subsidiaries shall alter the Company joint venture or Company Subsidiaries' outstanding capital stock strategic alliance, or declaresimilar long-term business combination, set aside, make arrangement or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stockagreement;
(dh) neither enter into any long-term license, supply or distribution agreement, in each case with an expected annual cost or revenue to the Company nor any in excess of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares$250,000 and which cannot be terminated on less than thirty (30) days’ notice without penalty;
(ei) neither sell, lease, license, pledge, transfer, subject to any Encumbrance or otherwise dispose of any Intellectual Property assets, material assets or material properties except (i) pursuant to existing Contracts or commitments specified in the Company nor Disclosure Letter, (ii) non-exclusive licenses of Intellectual Property assets to its customers, contractors, partners or suppliers in the ordinary course of business consistent with past practice, (iii) sales of inventory or used equipment in the ordinary course of business consistent with past practice, or (iv) Permitted Encumbrances;
(j) change any of the accounting methods used by the Company Subsidiaries shall: materially affecting its assets, liabilities or business, except for such changes that are required by GAAP or Regulation S-X promulgated under the Exchange Act or as otherwise specifically disclosed in the Company SEC Documents;
(ik) (x) incur or assume any long-term Indebtednessor short-term indebtedness for borrowed money, except in respect of indebtedness owing by any wholly-owned Subsidiary of the Company to the Company or except another wholly-owned Subsidiary of the Company in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; practice, or (ivy) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations indebtedness of borrowed money of any other Person, except as described in the Guarantors Disclosure Schedule as being Person (other than another Acquired Company in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estatepractice); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) 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, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(l) neither enter into, modify in any material respect or voluntarily terminate any Material Contract or any Contract that would have constituted a Material Contract if in effect on the date of this Agreement (provided that the Company nor any of Company Subsidiaries shall enter into or terminate be permitted to renew any Contract or transaction outside so long as such renewal is on substantially the ordinary course of businesssame terms as currently in place);
(m) neither take any action (other than consummation of the Company nor any of Company Subsidiaries shall (iMerger) grant that would reasonably be expected to any third party a license result in an adjustment to the Intellectual Property outside the ordinary course of business; Conversion Rate (ii) grant to any third party a license as defined in and pursuant to the Software in source code formIndenture) for the Convertible Notes; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;or
(n) neither make inconsistent with past practice, rescind or change any material Tax election, settle or compromise any claim relating to a material amount of Taxes, waive or extend the Company nor statute of limitations in respect of a material amount of Taxes, enter into any closing agreement within the meaning of Section 7121 of the Code (or any analogous provision of state, local or foreign Law) with respect to a material amount of Taxes, amend any Tax Return relating to a material amount of Taxes or make any material change in any of Company Subsidiaries shall paythe methods, repurchaseprinciples or practices used by it for Tax accounting except as required by Law, discharge surrender any right to claim a material Tax refund (including any such refund to the extent it is used to offset or satisfy otherwise reduce Tax liability) or enter into any Tax sharing agreements or similar arrangements, including Tax indemnity arrangements (other than customary agreements and contracts, the principal purpose of which is not related to Taxes); or
(o) authorize, commit or agree to take any of its claimsthe foregoing actions. Notwithstanding the foregoing, liabilities nothing contained in this Agreement shall give to Parent or obligations (absoluteMerger Sub, accrueddirectly or indirectly, asserted rights to control or unasserteddirect the operations of the Acquired Companies prior to the Effective Time. In addition, contingent notwithstanding the foregoing, nothing in this Section 6.1 shall restrict the Acquired Companies from, or otherwise)require the consent of Parent prior to, other than engaging in any transaction or entering into any agreement exclusively among the payment, discharge or satisfaction Acquired Companies in the ordinary course of business and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by. If reasonably requested by Parent, the Company Financial Statements will upon or incurred since shortly before the Company Balance Sheet date Acceptance Time use its commercially reasonable efforts to convert its marketable securities into cash in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP or (ii) make any election relating a manner and timing reasonably acceptable 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall 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 VII not being satisfied, or would make any representation or warranty of Guarantors 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 Sellers, the Company or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(r) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contract, commitment or arrangement (whether in writing or otherwise) to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40.
Appears in 1 contract
Interim Operations of the Company. Each of (a) Except as may be consented to in writing by Purchaser or except as specifically contemplated by this Agreement, the Guarantors shall procure Company hereby covenants to Purchaser that, and covenant and agree that, after during the period commencing on the date hereof of this Agreement and until ending on the Initial earlier to occur of (a) the Closing DateDate or (b) the termination of this Agreement in accordance with Section 11 below (the “Interim Period”), except the Company shall, and the Principal Shareholders shall cause the Company to, use their respective commercially reasonable efforts to (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) conduct the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), only in the ordinary coursecourse of business consistent with past practices, and each of (ii) preserve intact the GuarantorsCompany’s present business organization, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, (iii) keep available the services of the Company’s current officers and employees of the Company and Company Subsidiaries and maintain the existing relations employees, (iv) preserve its relationships with franchisees, customers, suppliers, creditors, business partners and others having business dealings with either of them, in each case in a manner consistent with past practice and (v) take no action which could reasonably be expected to adversely affect the Company or Company Subsidiaries, to the end that the goodwill and ongoing business ability of the Company and Company Subsidiaries shall be unimpaired at to consummate the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of 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;Transactions.
(b) except Except as contemplated by this Agreement or as set forth in Section 6.1 (b8.1(b) of the Guarantors Disclosure Schedule neither Schedule, the Company nor shall not, and the Principal Shareholders hereby covenant to cause the Company not to, do any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;following:
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur directly or assume any long-term Indebtednessindirectly incur, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggregate from the date hereof until the Initial Closing; (ii) pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company or any of Company Subsidiaries, except as required by the terms thereof; (iii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and except for the conversion of certain bonds as contemplated by this Agreement; (iv) assume, guarantee, endorse or otherwise become liable or responsible for any liability or obligation, including any capitalized lease obligations (whether directlyabsolute, contingently accrued, contingent or otherwise) ), of any other Person, or otherwise as an accommodation become responsible for the obligations of any other Person, except as described in the Guarantors Disclosure Schedule as being in the ordinary course of business and consistent with past practice and except for the conversion of certain bonds as contemplated herein; (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 capital expenditure or purchase, sale or lease of assets or real estate); (vii) write down the value of any inventory or write-off as uncollectible, any notes or accounts receivable, (viii) dispose of, abandon or permit to lapse any rights to any Company Intellectual Property or (ix) change any of the existing banking or safe deposit arrangements, described or referred to in the Guarantors Disclosure Schedule;
(f) neither the Company nor any of Company Subsidiaries shall permit or allow any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any liens;
(g) neither the Company nor any of Company Subsidiaries shall cancel any Indebtedness;
(h) neither the Company nor any of Company Subsidiaries shall be a party to any acquisition, merger, spin-off, consolidation, purchase of stock or interest in any corporation, partnership, association or other business organization or enter into or form any material joint-venture or enter into any agreement leading to any of the foregoing;
(i) neither the Company nor any of Company Subsidiaries shall make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants or to Persons providing management services, or, except for the employment agreement with Xxxxx Gallera, enter into or amend any employment, severance, consulting, termination or other agreement with, or employee benefit plan for, or make any loan or advance to, any of its officers, directors, employees, Affiliates, agents or consultants 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;
(j) neither the Company nor Company Subsidiaries shall make any changes to their severance policy or practices; 39
(k) neither the Company nor any of Company Subsidiaries shall (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, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of any amount relating to unused vacation days, except to the extent the Company or a Company Subsidiary is unconditionally obligated to do so on the date hereof, (ii) adopt or payamend any Employee Benefit Program or collective bargaining Contracts, grantexcept as required by Law;
(iii) make, issuechange or rescind any material Tax election, accelerate file any amended Tax Return not required by Law, enter into any closing Contract relating to Taxes, waive or accrue salary extend the statute of limitations in respect of Taxes, or settle or compromise any material Tax liability, or surrender any right or claim for a Tax refund;
(iv) cancel or forgive any material indebtedness for borrowed money owed to the Company;
(v) delay or postpone the payment of accounts payable and other liabilities involving more than $50,000;
(vi) make any loan, guaranty or other payments extension of credit, or benefits pursuant enter into any commitment to make any pensionloan, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement guaranty or other employee benefit planextension of credit, agreement or arrangement, or any employment or consulting agreement with to or for the benefit of any directorAffiliate, officer, employee, employee or agent or consultant, whether past or present, or (iii) amend any such existing plan, agreement or arrangement in a manner inconsistent with of the foregoingCompany;
(lvii) neither the Company nor any of Company Subsidiaries shall enter into take or terminate any Contract or transaction outside the ordinary course of business;
(m) neither the Company nor any of Company Subsidiaries shall (i) grant omit to any third party a license to the Intellectual Property outside the ordinary course of business; (ii) grant to any third party a license to the Software in source code form; or (iii) assign or otherwise transfer ownership of any Intellectual Property or any Company Software to any third party;
(n) neither the Company nor any of Company Subsidiaries shall 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 and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the Company Financial Statements or incurred since the Company Balance Sheet date in the ordinary course of business;
(o) neither the Company nor any of Company Subsidiaries shall (i) change any of the accounting methods used by it unless required by French GAAP or the applicable Foreign GAAP 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 French GAAP, the applicable Foreign GAAP or any Requirements of Law, 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, without prior consent of the Purchaser;
(p) except for the existing agreements which have been disclosed neither the Company nor any of Company Subsidiaries shall pay, loan or advance any amount to, or sell, transfer or lease any material properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement or arrangement with, any of their respective officers, directors or shareholders or any Affiliate or associate of any of their officers, directors or shareholders except for directors' fees, and compensation to officers at rates consistent with the Company, or the Company Subsidiaries' past practice;
(q) neither the Company nor any of Company Subsidiaries shall take, or agree to or commit to take, take any action that would or is reasonably likely to as a result in any of the conditions to the Closing set forth in ARTICLE VII not being satisfied, or would make which any representation or warranty of Guarantors 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 Sellers, the Company in Section 4 would be rendered untrue or Purchaser incorrect if such representation or warranty were made immediately following the taking or failure to consummate the Closing in accordance with the terms hereof or materially delay take such consummationaction; andor
(rviii) neither the Company nor any of Company Subsidiaries shall enter into any agreement, contractContract, commitment or arrangement (whether in writing or otherwise) to do take any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing. 40foregoing actions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
