Common use of Operations Prior to Closing Date Clause in Contracts

Operations Prior to Closing Date. Except (i) as set forth on Section 6.4 of the Disclosure Letter, (ii) as otherwise reasonably required by this Agreement, or (iii) with the consent of Buyer, Seller and VION shall, and shall cause each Banner Company, from and after the date of this Agreement until the Closing Date, to: (a) operate its Business only in the ordinary course of business consistent with past practice in all material respects, and use its commercially reasonable efforts to preserve its assets, properties, and business organization and its existing relations and goodwill with customers, suppliers and business associates; (b) not grant or announce any increase in the rates of salaries, bonuses or other benefits, compensation or commissions payable to any current or former directors, officers, employees or consultants of the Banner Companies (including equity-based compensation, severance or termination payments), except in accordance with any Contract, collective bargaining agreement, US Employee Benefit Plan or Foreign Benefit Plan in effect on the date hereof, as required by Legal Requirements or, other than consistent with past practice, which, in the aggregate, do not exceed $50,000 and is set forth on Section 6.4(b) of the Disclosure Letter; (c) not amend or modify in any material respect, enter into, or terminate any employment, profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, or other employee benefit plan, except as may be required to comply with Legal Requirements or any Contracts, any current collective bargaining agreement, Banner US Employee Benefit Plan or Foreign Benefit Plan in effect on the date hereof; (d) not make, declare or set aside any dividend or other distribution with respect to its capital stock (whether in cash or kind) or make any payment to Seller or any Affiliate of Seller that is not a Banner Company, other than (i) payments for goods or services purchased from Rousselot in the ordinary course of business and on arm’s length terms, (ii) the payment of management fees by the Banner Companies to VION or its Affiliates set forth on Section 6.4(d) of the Disclosure Letter, (iii) any payment that may be due by Banner Europe to Son Pension Fund pursuant to the Banner Europe Pension Agreement, in connection with the year-end reconciliation with Interpolis for 2011 or premium payments for 2012 or (iv) any payment in respect of Indebtedness owing to VION or its Affiliates; (e) not sell, pledge, mortgage, assign, transfer, abandon, fail to maintain, dispose of or encumber any of its assets (whether real, personal or mixed) except for sales of finished products in the ordinary course of business consistent with past practice; (f) not amend its Governing Documents or enter into any merger, consolidation, restructuring, recapitalization, reorganization or share exchange agreement or similar agreement or adopt resolutions providing therefor; (g) cause each of the Banner Companies not to (and not announce their intent to) (i) issue or incur (or modify in any material respect the terms of) any indebtedness for borrowed money, including the incurrence of any loans or the any issuance or sale of any debt securities or warrants or rights to acquire any debt securities, or (ii) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, any indebtedness, debt securities, warrants or rights of any other Person, or enter into any “keep well” or other agreement to maintain any financial statement condition of any other Person, other than (x) the Debt Financing and (y) ordinary course capital leases, purchase money indebtedness, deferred purchase price obligations, equipment financings and other ordinary course working capital facilities; (h) not issue, sell, deliver, redeem, purchase or otherwise acquire any of its equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or amend any terms of any such equity securities or agreements, in each case; (i) not pledge, dispose or otherwise subject to any Encumbrance, or authorize the pledge, disposition or subjecting to any Encumbrance of, any equity securities; (j) not effect any recapitalization, reclassification, stock split, stock combination or similar change in its capitalization; (k) not enter into any collective bargaining agreement or similar agreement; (l) not effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act or similar action under non-U.S. law) of its employees; (m) not acquire or agree to acquire by merging or consolidating with, or by purchasing the stock 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 which are material, individually or in the aggregate, to the Banner Companies, taken as a whole, other than in the ordinary course of business consistent with past practice; (n) not change any of its material accounting principles, methods or practices other than as required by GAAP; (o) not make any capital expenditure or commitment for any capital expenditure other than expenditures in the ordinary course of business pursuant to a capital budget delivered to Buyer prior to the date of this Agreement; (p) not enter into any new line of business outside of its existing line of business; (q) not amend the material terms of, relinquish any material rights under or terminate any Contract scheduled or required to be scheduled on Section 4.20 of the Disclosure Letter; (r) not enter into any Lease or any renewal thereof, other than an automatic renewal thereof; (s) keep in force, and not amend, modify or reduce, any material Insurance Policy currently in effect with respect to its assets, operations and activities; (t) not commence any Action or Proceeding other than in the ordinary course of business consistent with past practice or settle any Action or Proceeding other than settlements or compromises not exceeding $50,000 individually and $200,000 in the aggregate; (u) not take any action, or fail to take any action, that (i) would cause any representation or warranty made in this Agreement to be untrue or result in a breach of any covenant made in this Agreement, or (ii) has, or would reasonably be expected to have, a Material Adverse Effect; (v) not make any loans, advances or capital contributions, except advances for travel and other normal business expenses to officers and employees in the ordinary course of business consistent with past practice; (w) not abandon, dispose of, or permit to lapse any registered or applied-for Company Intellectual Property, or disclose any trade secret or other confidential information in a manner that would result in the loss of confidentiality thereof; or (x) not agree, whether in writing or otherwise, to do any of the foregoing.

Operations Prior to Closing Date. Except (i) as set forth on Section 6.4 of the Disclosure Letter, (ii) as otherwise reasonably required by In addition to any other express obligation under this Agreement, or (iii) with the consent of Buyer, Seller and VION shall, and shall cause each Banner Company, from and after between the date of this Agreement until and the Closing Date, the Company will, and the Sellers shall cause the Company to: (a) operate its conduct the Business of the Company only in the ordinary course Ordinary Course of business consistent with past practice in all material respects, and use its commercially reasonable efforts to preserve its assets, properties, and business organization and its existing relations and goodwill with customers, suppliers and business associatesBusiness; (b) not grant or announce any increase in use their Best Efforts to keep available the rates services of salaries, bonuses or other benefits, compensation or commissions payable to any the current or former directors, officers, employees or consultants employees, and agents of the Banner Companies Company and maintain the relations and good will with suppliers, customers, creditors, employees, agents, and others having business relationships with the Company. During the period from the date hereof to and including the Closing Date, except as expressly contemplated hereby, without the prior written consent of Buyer, the Company will not: (including equity-based compensationa) incur any liability or obligation of any material nature (whether accrued, severance absolute, contingent or termination paymentsotherwise), except in accordance with the Ordinary Course of Business; (b) permit any Contract, collective bargaining agreement, US Employee Benefit Plan or Foreign Benefit Plan in effect on the date hereof, as required by Legal Requirements or, other than consistent with past practice, which, in the aggregate, do not exceed $50,000 and is set forth on Section 6.4(b) of the Disclosure Letterits assets to be subjected to any Encumbrance; (c) not amend sell, transfer or modify otherwise dispose of any assets except in any material respect, enter into, or terminate any employment, profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, or other employee benefit plan, except as may be required to comply with Legal Requirements or any Contracts, any current collective bargaining agreement, Banner US Employee Benefit Plan or Foreign Benefit Plan in effect on the date hereofOrdinary Course of Business; (d) not make, declare or set aside any dividend or other distribution with respect to its capital stock (whether in cash or kind) or make any payment to Seller or any Affiliate of Seller that is not a Banner Company, other than (i) payments for goods or services purchased from Rousselot in the ordinary course of business and on arm’s length terms, (ii) the payment of management fees by the Banner Companies to VION or its Affiliates set forth on Section 6.4(d) of the Disclosure Letter, (iii) any payment that may be due by Banner Europe to Son Pension Fund pursuant to the Banner Europe Pension Agreement, in connection with the year-end reconciliation with Interpolis for 2011 or premium payments for 2012 or (iv) any payment in respect of Indebtedness owing to VION or its Affiliates; (e) not sell, pledge, mortgage, assign, transfer, abandon, fail to maintain, dispose of or encumber any of its assets (whether real, personal or mixed) except for sales of finished products in the ordinary course of business consistent with past practice; (f) not amend its Governing Documents or enter into any merger, consolidation, restructuring, recapitalization, reorganization or share exchange agreement or similar agreement or adopt resolutions providing therefor; (g) cause each of the Banner Companies not to (and not announce their intent to) (i) issue or incur (or modify in any material respect the terms of) any indebtedness for borrowed money, including the incurrence of any loans or the any issuance or sale of any debt securities or warrants or rights to acquire any debt securities, or (ii) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, any indebtedness, debt securities, warrants or rights of any other Person, or enter into any “keep well” or other agreement to maintain any financial statement condition of any other Person, other than (x) the Debt Financing and (y) ordinary course capital leases, purchase money indebtedness, deferred purchase price obligations, equipment financings and other ordinary course working capital facilities; (h) not issue, sell, deliver, redeem, purchase or otherwise acquire any of its equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or amend any terms of any such equity securities or agreements, in each case; (i) not pledge, dispose or otherwise subject to any Encumbrance, or authorize the pledge, disposition or subjecting to any Encumbrance of, any equity securities; (j) not effect any recapitalization, reclassification, stock split, stock combination or similar change in its capitalization; (k) not enter into any collective bargaining agreement or similar agreement; (l) not effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act or similar action under non-U.S. law) of its employees; (m) not acquire or agree to acquire by merging or consolidating with, or by purchasing the stock 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 which are material, individually or in the aggregate, to the Banner Companies, taken as a whole, other than in the ordinary course of business consistent with past practice; (n) not change any of its material accounting principles, methods or practices other than as required by GAAP; (o) not make any capital expenditure or commitment for any capital expenditure other than expenditures therefor, except in the ordinary course Ordinary Course of business pursuant to a capital budget delivered to Buyer prior to Business but in no event in excess of $100,000 in the date aggregate, except for the purchase of this Agreementcertain processing equipment approved by Buyer; (pe) not enter into redeem, purchase, otherwise acquire, or issue any new line of business outside shares of its existing line capital stock or grant any option, warrant or other right to purchase or acquire any such shares, or declare or pay any dividend, make or pay any other distribution or payment in respect of businessshares of capital stock; (qf) not amend the material terms of, relinquish borrow money or make any material rights under or terminate loan to any Contract scheduled or required to be scheduled on Section 4.20 of the Disclosure LetterPerson; (rg) not enter into write off as uncollectible any Lease note or any renewal thereofaccounts receivable, other than an automatic renewal thereofexcept write-offs in the Ordinary Course of Business charged to applicable reserves, none of which individually or in the aggregate is material to the Company; (sh) keep grant any increase in forcethe rate of wages, and not amendsalaries, modify bonuses or reduceother remuneration of any officer or non-hourly paid employee of the Company or, except in the Ordinary Course of Business, grant any material Insurance Policy currently increase in effect with respect to its assets, operations and activitiesthe wages of any hourly-paid employees; (ti) not commence cancel or waive any Action claims or Proceeding rights of substantial value; (j) make any change in any method of accounting or auditing practice except changes approved by Buyer; (k) other than in the ordinary course Ordinary Course of business consistent with past practice Business and limited to the hiring of at-will employees only, hire any additional or settle any Action replacement employees or Proceeding other than settlements engage additional or compromises not exceeding $50,000 individually and $200,000 in the aggregatereplacement independent contractors; (ul) enter into any modification of any Contracts except in the Ordinary Course of Business; (m) agree, whether or not in writing, to do any of the foregoing; (n) cause the Sellers or the Company to, without the prior consent of Buyer, to take any affirmative action, or fail to take any actionreasonable action within their or its control, that (i) would cause any representation or warranty made in this Agreement to be untrue or as a result in a breach of any covenant made in this Agreement, or (ii) has, or would reasonably be expected to have, a Material Adverse Effect; (v) not make any loans, advances or capital contributions, except advances for travel and other normal business expenses to officers and employees in the ordinary course of business consistent with past practice; (w) not abandon, dispose of, or permit to lapse any registered or applied-for Company Intellectual Property, or disclose any trade secret or other confidential information in a manner that would result in the loss of confidentiality thereof; or (x) not agree, whether in writing or otherwise, to do which any of the foregoingchanges or events listed in Section 3.16 would be likely to occur.

Operations Prior to Closing Date. (a) Prohibitions. Except (ix) as set forth on Section 6.4 of the Disclosure LetterSchedule 5.5, (iiy) as otherwise reasonably required contemplated by this Agreement, Agreement or (iiiz) with the consent of BuyerBuyer (which consent will not be unreasonably withheld or delayed), Seller and VION shall, USF shall comply and shall cause each Banner CompanyMember to comply, from and after the date of this Agreement until the Closing Date, towith the following: (ai) operate its the Business only in the ordinary course of business consistent in accordance with past practice practices and in material compliance with all material respects, and use its commercially reasonable efforts to preserve its assets, properties, and business organization and its existing relations and goodwill with customers, suppliers and business associatesLaws; (bii) not grant any bonus to any employee or announce implement any material increase in the rates of salaries, bonuses salaries or other benefits, compensation or commissions payable to any current or former directors, officers, employees or consultants of the Banner Companies (including equity-based compensation, severance or termination payments)employees of the Group, except in accordance with any Contract, collective bargaining agreement, US Employee Benefit Plan or Foreign Benefit Plan Contracts in effect on the date hereof, as required by Legal Requirements or, other than hereof or regularly scheduled periodic increases and bonuses consistent with past practice, which, in the aggregate, do not exceed $50,000 and is set forth on Section 6.4(b) of the Disclosure Letterprior practices; (ciii) not amend or modify institute any material increase in any material respect, enter into, or terminate any employment, profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, welfare or other employee benefit planplan with respect to the employees of the Group, except as may be required to comply with Legal Requirements Law or any Contracts, any current collective bargaining agreement, Banner US Employee Benefit Plan or Foreign Benefit Plan Contracts in effect on the date hereofhereof and except in connection with modifications made to any USF Employee Benefit Plan or Vivendi Employee Benefit Plan; (d) not make, declare or set aside any dividend or other distribution with respect to its capital stock (whether in cash or kind) or make any payment to Seller or any Affiliate of Seller that is not a Banner Company, other than (i) payments for goods or services purchased from Rousselot in the ordinary course of business and on arm’s length terms, (ii) the payment of management fees by the Banner Companies to VION or its Affiliates set forth on Section 6.4(d) of the Disclosure Letter, (iii) any payment that may be due by Banner Europe to Son Pension Fund pursuant to the Banner Europe Pension Agreement, in connection with the year-end reconciliation with Interpolis for 2011 or premium payments for 2012 or (iv) any payment in respect of Indebtedness owing to VION or its Affiliates; (e) not sell, pledge, mortgage, assign, transfer, abandon, fail to maintain, dispose of or encumber any of its assets (whether real, personal or mixed) except for sales of finished products in the ordinary course of business consistent with past practice; (f) not amend its the Governing Documents of any Member or enter into any merger, consolidation, restructuring, recapitalization, reorganization or share exchange agreement or similar agreement or adopt resolutions providing therefor; (g) cause each of the Banner Companies not to (and not announce their intent to) (i) issue or incur (or modify in any material respect the terms of) any indebtedness for borrowed money, including the incurrence of any loans or the any issuance or sale of any debt securities or warrants or rights to acquire any debt securities, or (ii) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, any indebtedness, debt securities, warrants or rights of any other Person, or enter into any “keep well” or other agreement to maintain any financial statement condition of any other Person, other than (x) the Debt Financing and (y) ordinary course capital leases, purchase money indebtedness, deferred purchase price obligations, equipment financings and other ordinary course working capital facilities; (hv) not issue, sell, deliver, redeem, purchase or otherwise acquire any of its equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or amend any terms of any such equity securities or agreements, in each case; (i) not pledge, dispose of or otherwise subject to encumber any Encumbrance, or authorize the pledge, disposition or subjecting to assets of any Encumbrance of, any equity securities; (j) not effect any recapitalization, reclassification, stock split, stock combination or similar change in its capitalization; (k) not enter into any collective bargaining agreement or similar agreement; (l) not effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act or similar action under non-U.S. law) of its employees; (m) not acquire or agree to acquire by merging or consolidating with, or by purchasing the stock or a substantial portion of the Members (except for (A) sales of 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 which are material, individually or in the aggregate, to the Banner Companies, taken as a whole, other than in the ordinary course of business and in a manner consistent with past practicepractices, (B) dispositions of obsolete or worthless assets, and (C) sales of immaterial assets not in excess of $1,000,000 in the aggregate); (nvi) not change (A) issue, sell, split, combine, reclassify, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest in any of its material accounting principlesthe Members; (B) repurchase, methods redeem or practices otherwise acquire any securities of any Member; (C) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation or dissolution of any Member; or (D) declare or pay any dividend or distribution with respect to the capital stock of any Member, other than dividends or distributions to other Members and dividends or distributions necessary or appropriate to eliminate intercompany balances among the Members or between any of the Members and USF or any Affiliate, as indicated on Schedule 2.3; (vii) not take any action to change accounting policies or procedures (including procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable) except as required by GAAPa change in GAAP occurring after the date hereof; (oviii) not make pay, discharge or satisfy any capital expenditure claims or commitment for any capital expenditure liabilities (absolute, accrued, asserted or unasserted, contingent or otherwise) of the Group in excess of $1,000,000 in the aggregate, other than expenditures the payment, discharge or satisfaction of liabilities in the ordinary course of business pursuant to a capital budget delivered to Buyer prior to the date of this Agreement; (p) not enter into any new line of business outside of its existing line of business; (q) not amend the material terms of, relinquish any material rights under or terminate any Contract scheduled or required to be scheduled on Section 4.20 of the Disclosure Letter; (r) not enter into any Lease or any renewal thereof, other than an automatic renewal thereof; (s) keep in force, and not amend, modify or reduce, any material Insurance Policy currently in effect with respect to its assets, operations and activities; (t) not commence any Action or Proceeding other than in the ordinary course of business consistent with past practice or settle any Action or Proceeding other than settlements or compromises not exceeding $50,000 individually and $200,000 in the aggregate;practices; and (uix) not take any action, expend or fail agree to take any action, that (i) would cause any representation or warranty made make capital expenditures in this Agreement to be untrue or result in a breach excess of any covenant made in this Agreement, or (ii) has, or would reasonably be expected to have, a Material Adverse Effect; (v) not make any loans, advances or capital contributions, except advances for travel and other normal business expenses to officers and employees in the ordinary course of business consistent with past practice; (w) not abandon, dispose of, or permit to lapse any registered or applied-for Company Intellectual Property, or disclose any trade secret or other confidential information in a manner that would result in the loss of confidentiality thereof; or (x) not agree, whether in writing or otherwise, to do any of the foregoing$2,000,000 per month.