Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company to: (a) Use reasonable efforts to keep the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business; (b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents); (c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business; (d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser); (e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practice; (f) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records); (g) Not enter into any joint venture, partnership or similar arrangement; (h) Not amend its Certificate of Incorporation or ByLaws; (i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing); (j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAP; (k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable); (l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan; (m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms; (n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and (o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b).
Appears in 1 contract
Samples: Acquisition Agreement (Imperial Home Decor Group Holdings I LTD)
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from Between the date hereof to of this Agreement and the Closing DateClosing, Seller will cause the Company toSellers and Foreign Subsidiaries shall:
(a) Use reasonable efforts to keep conduct the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than only in the ordinary course Ordinary Course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or except as otherwise held directed by the Company for use Buyer in the Business ("Assets") in good repair, ordinary wear and tear exceptedwriting, and continue without making any commitment on Buyer’s behalf, use its Best Efforts to make capital expenditures substantially in accordance preserve intact its current business organization, keep available the services of its officers, employees and agents and maintain its relations and good will with budgets previously delivered to Purchaser (suppliers, customers, landlords, creditors, employees, agents and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance others having business relationships with budgets previously delivered to Purchaser unless each other party otherwise consents)it;
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for confer with Buyer prior to implementing operational decisions of a material nature;
(d) otherwise report periodically to Buyer concerning the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business status of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any make no material Contract except changes in the ordinary course of business consistent management personnel without prior consultation with past practiceBuyer;
(f) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for maintain the obligations Assets in a state of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business repair and condition that complies with Legal Requirements and is consistent with past practice reflected on the Company's books requirements and records)normal conduct of the Business;
(g) Not enter into any joint venturekeep in full force and effect, partnership or similar arrangementwithout amendment, all material rights relating to the Business;
(h) Not amend its Certificate comply with all Legal Requirements and contractual obligations applicable to the operations of Incorporation or ByLawsthe Business;
(i) Not dispose of, permit to lapse continue in full force and effect the insurance coverage under the policies set forth in Part 3.21(a) or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing)substantially equivalent policies;
(j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAPto comply with ERISA or to maintain qualification under Section 401(a) of the Code, not amend, modify or terminate any Employee Plan without the express written consent of Buyer, and except as required under the provisions of any Employee Plan, not make any contributions to or with respect to any Employee Plan without the express written consent of Buyer, provided that Sellers and Foreign Subsidiaries shall contribute that amount of cash to each Employee Plan necessary to fully fund all of the benefit liabilities of such Employee Plan on a plan-termination basis as of the Closing Date;
(k) Not sell cooperate with Buyer and assist Buyer in identifying the Governmental Authorizations required by Buyer to operate the business from and after the Closing Date and either transferring existing Governmental Authorizations of Seller to Buyer, where permissible, or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable)obtaining new Governmental Authorizations for Buyer;
(l) With respect upon request from time to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada)time, Inc.(the "Canadian Pension Plan")execute and deliver all documents, (1) not withdraw make all truthful oaths, testify in any assets from the Canadian Pension Plan Proceedings and do all other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as acts that may be required by Lawreasonably necessary or desirable in the opinion of Buyer to consummate the Contemplated Transactions, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;all without further consideration; and
(m) Not fail maintain all books and Records of Sellers and Foreign Subsidiaries relating to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) Business in the ordinary course Ordinary Course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)Business.
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company to:
(a) Use reasonable efforts to keep the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practice;
(f) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;
(h) Not amend its Certificate of Incorporation or ByLawsBy-Laws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing);
(j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b).
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from Between the date hereof of this Agreement and the Closing, with respect to the Closing DateBusiness and Assets, unless Buyer otherwise consents in writing, each Seller will cause the Company toshall:
(a) Use reasonable efforts to keep conduct the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practicepractices or reasonable future expectations;
(b) without making any commitment on Buyer’s behalf, use commercially reasonable efforts to preserve intact the current Business organization, keep available the services of its employees and agents and maintain its relations and good-will with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with it;
(c) make no material changes in management personnel of the Business;
(d) maintain the Assets in a state of repair and condition that complies with Legal Requirements and is consistent with the requirements and normal conduct of the Business;
(e) use commercially reasonable efforts to keep in full force and effect, without amendment, all material rights relating to the Business;
(f) Not incur indebtedness for borrowed money, comply with all Legal Requirements and use commercially reasonable efforts to comply with all contractual obligations applicable to the operations of the Business;
(g) continue in full force and effect the insurance coverage under the policies set forth in the Seller Disclosure Letter or assume, guarantee, endorse or otherwise become responsible for substantially equivalent policies; and THE PORTIONS OF THIS AGREEMENT IDENTIFIED BY THE SYMBOL “[* * *]” HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
(h) maintain all books and Records of Seller relating to the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees Business in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;
(h) Not amend its Certificate of Incorporation or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing);
(j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)practices.
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from (a) Between the date hereof and the Closing Date, unless otherwise agreed in writing by Buyer, Seller Parties will: (i) except as otherwise allowed or required pursuant to the terms of this Agreement, conduct the Business in the ordinary course and in a manner consistent with past practice, provided that the foregoing shall not impact (A) Regis’s effort to transition product distribution from SalonCentric to Beauty Systems Group other than with respect to the Purchased Assets or (B) either Seller’s pending patent applications or Seller’s pending trademark applications other than those included in the Purchased Assets; (ii) use reasonable best efforts to preserve intact the current business operation of the Business, keep available the services of the current officers, employees and agents of Sellers as they relate to the Business, and maintain the relations and goodwill with its suppliers, customers, Franchisees, landlords, trade creditors, employees, agents and others having business relationships with Sellers, to the extent necessary to operate the Business; (iii) use reasonable best efforts to maintain all of the Purchased Assets in their current condition, ordinary wear and tear excepted and, in the event of any damage to or destruction of any of the Purchased Assets prior to the Closing Date, Seller will cause promptly replace, repair or restore such Purchased Assets; (iv) pay the Company to:
debts and Taxes of Sellers when due and pay and perform other obligations of Sellers when due; (av) Use reasonable efforts to keep maintain the Business intact (including without limitation relationships with customers, employees, suppliers Books and others) and not take or permit to be taken or do or suffer to be done anything other than Records in the usual, regular and ordinary course of business of the Business as presently conductedmanner, on a basis consistent with prior years; (vi) fix any material bugs and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included defects in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except Intellectual Property Assets that arise in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practice;
; (fvii) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees maintain in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;
(h) Not amend its Certificate of Incorporation or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing);
(j) Not make any change full force all insurance policies currently in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtednesseffect; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b).
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company to:
(a) Use reasonable efforts to keep the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practice;
(f) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;
(h) Not amend its Certificate of Incorporation or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing);
(j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b).
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company to:
(a) Use reasonable efforts to keep the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on Between the date of this Agreement and the Closing Date, unless otherwise agreed in writing by Purchaser, Seller will and will cause its Affiliates to: (Seller representing that, a) except as otherwise allowed or required pursuant to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter intothis Agreement, amend, modify or cancel any material Contract except conduct the Business in the ordinary course of business in a manner consistent with past practice;
(f) Not incur indebtedness for borrowed money, including without limitation continue their promotional activities and pricing and purchasing policies, not shorten or assume, guarantee, endorse lengthen the customary payment cycles or otherwise become responsible change the material terms for any accounts payable or accounts receivable, continue to acquire, produce and maintain Inventory (including the obligations mix thereof) and maintain in accordance with NSA's normal maintenance standards consistent with the past practices of any other person or entitythe Business all equipment and machinery of whatsoever kind comprising a part of the Assets, or make loans or advances to any person or entity which have (other than advances to Employees replacement parts or equipment) been used in the ordinary course of business consistent with past practice reflected on Business during the Company's books and records);
last twelve (g12) Not enter into any joint venture, partnership or similar arrangement;
months; (hb) Not amend its Certificate of Incorporation or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail use commercially reasonable efforts to preserve any of intact its Intellectual Property or other similar rightscurrent business organization, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such keep available the services of the foregoing as may occur by operation current officers, employees and agents of Law or the Business, and maintain the relations and goodwill with all material suppliers, customers, trade creditors, employees, agents and others having a material business relationship with the Business; (c) exercise (but only after notice to and receipt of written approval from Purchaser) any rights of renewal pursuant to the terms of any of the foregoing);
leases or subleases set forth on Schedule 3.21(a) which by their terms would otherwise expire; (jd) Not renew or apply for renewal of all material licenses and all Environmental Permits;(e) maintain in full force and effect the insurance described in Section 3.24(a) or insurance providing comparable coverage and all insurance currently maintained with respect to the Unwanted Property; (f) continue capital projects and make any change capital expenditures in the accounting methods, principles or practices of connection with the Business, except as required by GAAP;
including without limitation those described on Schedule 3.7(b) and Schedule -67- 73 3.13(c); and (kg) Not sell or factor confer with Purchaser concerning any account receivable and all operational matters of the Business a material nature relating to or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to affecting the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)Business.
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to expressly permitted or required by Purchaser or requested by Purchaser or any of its Affiliatesthis Agreement, during the period from the date hereof to of this Agreement and continuing until the Closing Dateearlier of the termination of this Agreement and the effective time of the Closing, Seller will cause except upon the consent of Safeguard, the Company toagrees that:
(a) Use reasonable efforts to keep the Company will conduct the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than only in the ordinary course of business of consistent with past practice;
(b) the Business Company will not reduce the pricing on certain license agreements as presently conducted, and set forth on Schedule 6.3(b);
(c) the Company will use commercially reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) preserve intact the current business organization of the Company, (ii) keep available the services of the current officers, employees, and agents of the Company, and (iii) maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Company;
(d) the Company will use commercially reasonable efforts to obtain in writing as promptly as possible all Required Consents;
(e) the Company will (i) maintain its corporate existence in good standing in the jurisdictions of its incorporation and its due qualification in good standing in all events Seller will take all actions jurisdictions in which it is so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million qualified and (ii) maintain all of its books and records in the usual, regular and ordinary manner on a basis consistent with past practices;
(f) the Company will not effect (i) make any transaction between Imperial Canada change in its organizational documents or C&A Canadaits authorized, on the one handissued or outstanding capital stock, and (ii) grant any options or other rights to acquire, whether directly or contingently, any of the Purchased Imperial Companiesits capital stock, on the (iii) declare, set aside or pay any dividend or make any other handdistribution in respect of its capital stock or directly or indirectly redeem, retire, purchase or otherwise reacquire any of its shares of capital stock, (iv) sell, rent, lease or otherwise dispose of any of its assets, except in the ordinary course of business, (v) enter into any employment contract, increase the rate of compensation payable or to become payable by it to any officer or any other executive employee or make any general increase in the compensation or rate of compensation payable or to become payable to hourly employees or salaried employees or (vi) accrue or pay to any of its officers or employees any bonus, profit-sharing, retirement pay, insurance, death benefit, fringe benefit or other compensation, except as disclosed in the Schedules hereto;
(bg) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practice;
, the Company will not (fi) Not incur any indebtedness for borrowed moneymoney borrowed, (ii) make any capital expenditures or commitments for capital expenditures, (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or entity, (iv) create or make loans or advances suffer to exist any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;new Liens; and
(h) Not amend its Certificate the Company will not, without the prior consent of Incorporation Safeguard, take any affirmative action, or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve take any reasonable action within their or its control, as a result of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of which any of the foregoing);
(j) Not make any change changes or events listed in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than Section 4.25 is reasonably likely to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)occur.
Appears in 1 contract
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company to:
(a) Use reasonable efforts to keep the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating to maintenance of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repair, ordinary wear and tear excepted, and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on Between the date of this Agreement and the Closing Date, unless otherwise agreed to in writing by Buyer, the Sellers will:
(Seller representing that, i) except as otherwise allowed or required pursuant to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser)this Agreement, conduct the business and operations of each of the Companies and the Subsidiary only in the ordinary course in a manner consistent with past practice;
(eii) Not enter intouse best efforts to preserve intact the current business organizations of each of the Companies and the Subsidiary, amendkeep available the services of the current officers, modify employees, and agents of each of the Companies and the Subsidiary, and maintain the relations and goodwill with all suppliers, customers, licensers, licensees, landlords, trade creditors, Employees, agents, and others having business relationships with each of the Companies or cancel any the Subsidiary;
(iii) confer with Buyer concerning operational matters of a material Contract except nature;
(iv) maintain in full force and effect the insurance described in Section 2.17 or insurance providing at least comparable coverage;
(v) maintain all the properties and assets of the business and operations of each of the Companies and the Subsidiary in the ordinary course consistent with past practice;
(vi) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with prior years;
(vii) perform and comply with its obligations under all Contracts in the ordinary course of business consistent with past practice;
(fviii) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for the obligations promptly advise Buyer of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records);
(g) Not enter into any joint venture, partnership or similar arrangement;
(h) Not amend its Certificate of Incorporation or ByLaws;
(i) Not dispose of, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing);
(j) Not make any change in circumstances which arises prior to the accounting methodsClosing, principles which would make any representation or practices warranty set forth in this Agreement untrue if such state of facts had existed on the date of execution of this Agreement.
(ix) furnish to Buyer copies of all financial statements and certificates and reports concerning operation of the Businessbusiness, except as required by GAAP;
(k) Not sell and when such financial statements, certificates and reports are delivered to any Seller or factor pursuant to any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) IndebtednessScheduled Contract; and
(ox) Not enter into a Contract report periodically to do any Buyer concerning the status and operation of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)business and operations of each of the Companies and the Subsidiary.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dailey Petroleum Services Corp)
Operation of the Business. Except in connection with or as a result of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to expressly permitted or required by Purchaser or requested by Purchaser or any of its Affiliatesthis Agreement, from unless the Purchasers shall otherwise consent in writing (which decision regarding consent will be promptly communicated and not unreasonably delayed), between the date hereof to of this Agreement and the Closing Date, Seller the Sellers, to the extent not prohibited by applicable Antitrust Laws, will, and will cause the Company AlphaGary Canada to:
(a) Use reasonable efforts to keep conduct the Business intact (including without limitation relationships with customers, employees, suppliers and othersthe business of each Target Company) and not take or permit to be taken or do or suffer to be done anything other than only in the ordinary course Ordinary Course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating use commercially reasonable efforts to maintenance consummate the Reorganization, maintain in all material respects the Purchased IP and preserve intact the Business, keep available the services of the assets ownedcurrent officers, leased or otherwise held by employees and agents of the Company for use in Target Companies and maintain the Business ("Assets") in good repairBusiness’ present relations with suppliers, ordinary wear customers, landlords, creditors, employees, agents and tear excepted, and continue to make capital expenditures substantially in accordance others having business relationships with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents)the Business;
(c) Not purchase, sell, lease reasonably confer with the Purchasers concerning course operational matters that are of a material or dispose of, or enter into any Contract for non-ordinary nature;
(d) otherwise reasonably report periodically to the purchase, sale, lease or disposition of, or subject to Lien, any Purchasers concerning the status of the Assets other than (i) Products or (ii) in Business, including the ordinary course cash management processes, status of business accounts payable, Accounts Receivable and the operations and finances of the Business;
(d) Not adopt or make any amendment to any Employee Plan or increase the general rates of compensation of Employees, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing that, to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any make no material Contract changes in management personnel of the Business except in as otherwise agreed by the ordinary course of business consistent with past practiceparties;
(f) Not incur indebtedness for borrowed moneykeep in full force and effect, or assumewithout amendment, guarantee, endorse or otherwise become responsible for all material rights relating to the obligations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records)Business;
(g) Not enter into any joint venturekeep all Material Contracts, partnership Leases, permits and other agreements affecting the Real Property in all material respects in good standing and free from delinquency or similar arrangementdefault;
(h) Not amend its Certificate comply in all material respects with all Legal Requirements applicable to the operations of Incorporation or ByLawsthe Business;
(i) Not dispose ofmaintain the Real Property in all material respects in the same state of condition and repair as existing on the date hereof;
(j) refrain from (i) performing or allowing the performance of any construction on the Real Property (except in the event of an emergency, permit notice of which will be promptly given to lapse the Purchasers) or otherwise fail to preserve (ii) entering into any of its Intellectual new Contracts affecting or binding upon the Real Property that would be binding upon the Purchasers or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity Target Company after the Closing other than an authorized representative in the Ordinary Course of PurchaserBusiness;
(k) not amend, materially modify or terminate any trade secret (except for such Target Company Benefit Plan without the express written consent of the foregoing Purchasers, other than as may occur required by operation applicable Legal Requirements, the terms of Law any Target Company Benefit Plan or the terms of any of the foregoing);
(j) Not make any change in the accounting methods, principles or practices of the Business, except as required by GAAP;
(k) Not sell or factor any account receivable of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable)Material Contract;
(l) With respect not prepare any Tax Returns in a manner that would not be permitted pursuant to the Pension Plan for Salaried Employees Section 9.1(a) of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Planthis Agreement;
(m) Not fail not make any Tax election or settle or compromise any Tax liability; incur any material liability for Taxes other than in the Ordinary Course of Business; or file an amended Tax Return or a claim for refund of Taxes with respect to pay when due any amount owed to a third partythe income, including without limitationoperations or property of Target Companies unless such action (i) is required by an applicable Legal Requirement, any Taxes, in accordance (ii) is not inconsistent with the applicable payment terms;past practices of any Target Company or (iii) would not adversely affect the Tax liability of the Purchasers or any Related Persons of any Purchaser (including the Target Companies after the Closing Date); and
(n) Not prepay any obligation maintain in all material respects all books and records of the Company other than (i) Business and the Target Companies in the ordinary course Ordinary Course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)Business.
Appears in 1 contract
Samples: Business Purchase Agreement (Rockwood Holdings, Inc.)
Operation of the Business. Except Between the date of this Agreement and the Closing, Seller shall, in connection with or as a result the conduct of any matter listed or described on Schedule 3.5, as expressly contemplated herein or as otherwise consented to by Purchaser or requested by Purchaser or any of its Affiliates, from the date hereof to the Closing Date, Seller will cause the Company toBusiness:
(a) Use reasonable efforts to keep conduct the Business intact (including without limitation relationships with customers, employees, suppliers and others) and not take or permit to be taken or do or suffer to be done anything other than only in the ordinary course Ordinary Course of business of the Business as presently conducted, and use reasonable efforts to maintain the goodwill associated with the Business; without limiting the generality or effect of the foregoing, (i) in all events Seller will take all actions so that, as of immediately prior to the Closing, the total accounts payable and accrued liabilities (other than any liabilities under the Canadian Pension Plan) included in the C&A Imperial Canada Assumed Liabilities total not more than $5.0 million and (ii) not effect any transaction between Imperial Canada or C&A Canada, on the one hand, and any of the Purchased Imperial Companies, on the other hand, except in the ordinary course of business;
(b) Continue existing practices relating except as otherwise directed by Buyer in writing, and without making any commitment on Buyer's behalf, use its Best Efforts to maintenance preserve intact its current business organization, keep available the services of its officers, employees and agents and maintain its relations and good will with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with it;
(c) make no material changes in management personnel without prior consultation with Buyer;
(d) maintain the Assets in substantially the same condition as of the assets owned, leased or otherwise held by the Company for use in the Business ("Assets") in good repairdate of this Agreement, ordinary wear and tear excepted, in a manner consistent with the requirements and continue to make capital expenditures substantially in accordance with budgets previously delivered to Purchaser (and Imperial hereby agrees to continue to make capital expenditures only substantially in accordance with budgets previously delivered to Purchaser unless each other party otherwise consents);
(c) Not purchase, sell, lease or dispose of, or enter into any Contract for the purchase, sale, lease or disposition of, or subject to Lien, any of the Assets other than (i) Products or (ii) in the ordinary course of business normal conduct of the Business;
(de) Not adopt or make any amendment use its Best Efforts to any Employee Plan or increase the general rates of compensation of Employeeskeep in full force and effect, except (i) as required by Law or (ii) pursuant to any Contract in effect on the date of this Agreement (Seller representing thatwithout amendment, all material rights relating to the Knowledge of Seller, no Contract providing for such adoption, amendment or increase is in effect other than collective bargaining agreements the terms of which have been previously disclosed to Purchaser);
(e) Not enter into, amend, modify or cancel any material Contract except in the ordinary course of business consistent with past practiceBusiness;
(f) Not incur indebtedness for borrowed money, or assume, guarantee, endorse or otherwise become responsible for use its Best Efforts to comply with all Legal Requirements and contractual obligations applicable to the obligations operations of any other person or entity, or make loans or advances to any person or entity (other than advances to Employees in the ordinary course of business consistent with past practice reflected on the Company's books and records)Business;
(g) Not enter into any joint venture, partnership use its Best Efforts to continue in full force and effect the insurance coverage under the policies set forth in Schedule 4.20 or similar arrangementsubstantially equivalent policies;
(h) Not amend its Certificate except as required to comply with ERISA or to maintain qualification under Section 401(a) of Incorporation the Code, not amend, modify or ByLawsterminate any Employee Plan insofar as it relates to employees of the Business without the express written Consent of Buyer;
(i) Not dispose ofcooperate with Buyer and assist Buyer in identifying the Governmental Authorizations required by Buyer to operate the Business from and after the Closing Date and in transferring existing Governmental Authorizations of Seller to Buyer, permit to lapse or otherwise fail to preserve any of its Intellectual Property or other similar rights, dispose of or permit to lapse any material Permit, or dispose of or disclose to any person or entity other than an authorized representative of Purchaser, any trade secret (except for such of the foregoing as may occur by operation of Law or the terms of any of the foregoing)where permissible;
(j) Not make any change maintain all books and Records of Seller relating to the Business in the accounting methods, principles or practices Ordinary Course of the Business, except as required by GAAP;; and
(k) Not sell or factor any account receivable remove all of the Business or otherwise participate in any accounts receivable facility other than to accept payments made by account debtors to the Company at an existing lock-box of the Company (which lock-box arrangement will be terminated as promptly as practicable);
(l) With respect to the Pension Plan for Salaried Employees of Imperial Wallcoverings (Canada), Inc.(the "Canadian Pension Plan"), (1) not withdraw any assets Excluded Assets from the Canadian Pension Plan other than to pay benefits in accordance with its existing terms, (2) not make any amendment to the Canadian Pension Plan and (3) other than as may be required by Law, make any change to the actuarial assumptions used in determining the actuarial present value of the liabilities of the Canadian Pension Plan;
(m) Not fail to pay when due any amount owed to a third party, including without limitation, any Taxes, in accordance with the applicable payment terms;
(n) Not prepay any obligation of the Company other than (i) in the ordinary course of business consistent with past practice or (ii) Indebtedness; and
(o) Not enter into a Contract to do any of the foregoing (other than as may be required by Section 3.5(a) or 3.5(b)Real Estate.
Appears in 1 contract
