Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall cause the Acquired Companies to operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. (b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as required by applicable Requirements of Law, as expressly contemplated by this Agreement or with the prior written consent of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed), Sellers shall cause the Acquired Companies, other than in the ordinary course of business, not to: (i) purchase or otherwise acquire any assets or make any capital expenditures, in each case that are material, individually or in the aggregate, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate); (ii) sell, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof); (iii) make any loan to any third party; (iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law; (v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law; (vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof; (vii) terminate or adversely amend in any material respect, or exercise any option to extend, any Lease Agreement; (viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law; (ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies; (x) amend the Organizational Documents of the Acquired Companies; (xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound; (xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company; (xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral; (xiv) enter into a new line of business or abandon or discontinue any existing lines of business; (xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or (xvi) agree to do any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall use its commercially reasonable efforts to, and to cause the Acquired Companies to its Affiliates to, operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts to, and shall cause its Affiliates to, use their commercially reasonable efforts consistent with good business practice to, preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except as set forth in Schedule 7.47.4 of the Seller Disclosure Schedule, except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned withheld or delayed), Sellers Seller shall not, and shall cause the Acquired Companies, other than in the ordinary course of business, its Affiliates not to, with respect to the Business and the conduct and occupancy of the Stores:
(i) make any material change in the Business or the operations of the Business, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) purchase or otherwise acquire any assets or make any capital expenditures, in each case that are material, individually or in the aggregate, to the Business (other than (A) purchases of inventory in the ordinary course of business consistent with past practice, (B) capital expenditures contemplated by the fiscal 2006 capital budget for the Business made available to Buyer, (C) capital expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by Seller or its Affiliates, (D) capital expenditures required by any Governmental Body and (E) such capital expenditures not covered by clauses (A) through (D) above that do not exceed $500,000 individually or $1,500,000 10,000 in the aggregate);
(iiiii) sellexercise any option to extend a lease listed on Schedule 5.7(a)(i);
(iv) grant any Encumbrance with respect to any assets of the Business, lease in each case other than Permitted Encumbrances and Permitted Real Property Exceptions;
(v) transfer any material assets (other than cash in excess of that required by Section 2.1(a)(xiv) prior to the Effective Time) of the Business to any other part of the Parisian Business or any other Person;
(vi) institute any material increase in the benefits available under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to any Store Employees, other than as expressly required by the terms of any such plan as in effect on the date of this Agreement or Requirements of Law;
(vii) grant to any Store Employee any material increase in compensation or other benefits (excluding any retention agreements that do not involve payments by Buyer to any such Store Employee after the Closing) except as may be required under existing agreements or in the ordinary course of business consistent with past practice;
(viii) enter into or amend any collective bargaining agreement;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, any business or any corporation, partnership, association or other business organization or division thereof (other than Seller's purchase of the stock of the Companies and the subsequent merger of one or more of the Companies with and into Seller);
(x) sell or otherwise transfer or dispose of any assets (including any transfer or other disposition of assets to any other portions of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)Parisian Business) that are material, either individually or in the aggregate, to the Business (other than the sale sales of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereofconsistent with past practice);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(vii) terminate or adversely amend in any material respect, or exercise any option to extend, any Lease Agreement;
(viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially adversely modify or cancel amend any material Contract Business Agreement (including any Material Contract) to which any of other than the Acquired Companies is a party or by which it is boundXxxxxxxxx Creek Amendment);
(xii) hire or promote intentionally waive in writing any person as or to (as the case may be) the position of an officer right of any Acquired Companymaterial value of or with respect to the Business;
(xiii) adoptenter into any material agreement, modify contract or terminate any: (i) employment, severance, retention or other agreement arrangement with any current or former employee, officer, director, independent contractor or consultant, or of its Affiliates relating to the Business (iiother than the Xxxxxxxxx Creek Amendment) collective bargaining or other unless such agreement with a union, in each case whether written or oralterminates as of the Closing Date;
(xiv) enter into a create any new line gift certificate, gift card, merchandise voucher, coupon or refund program for the Business or amend in any material respect the Seller Gift Programs, in each case, other than in the ordinary course of business or abandon or discontinue any existing lines of businessconsistent with past practice;
(xv) adopt create any plan new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xvi) except as permitted by Schedule 7.4(b)(xvi) or as permitted by the Private Brands Agreement, on behalf of merger, consolidation, reorganization, liquidation the Business (A) place any orders (other than fill-in or dissolution replenishment orders) for products bearing a Private Brand (as defined in the Private Brands Agreement) or file of (B) place any fill-in or replenishment orders for products bearing a petition Private Brand (as defined in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of LawPrivate Brands Agreement); or
(xvixvii) agree to do any of the foregoing.
(c) Without the prior written consent of Buyer, which consent will not be unreasonably withheld, Seller shall not amend, supplement or otherwise modify the Stock Purchase Agreement in any manner that would reasonably be expected to have an adverse effect on the Business, the Assets or the Assumed Liabilities.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior to From the Closingdate hereof until the Closing Date, each Seller shall cause the Acquired Companies to operate and carry on the Business business of the Owned Stations, and use its best efforts to cause the Purchased Stations to be operated and carried on, only in the ordinary course consistent with past practice and substantially as operated immediately prior currently operated. Consistent with the foregoing, Seller shall keep and maintain the Purchased Assets in good operating condition and repair and shall use its reasonable efforts consistent with good business practice to preserve the date goodwill of this Agreementthe customers and others having business relations with the Stations.
(b) Without limiting the generality of Notwithstanding Section 7.4(a4.4(a), except as expressly contemplated by this Agreement, except as set forth in Schedule 7.4, as required by applicable Requirements of Law, as expressly contemplated by this Agreement 4.4(b) or except with the express prior written consent approval of Buyer Buyer, Seller shall not:
(which Buyer agrees shall not be unreasonably withheldi) make any material change in the business or the operations of the Stations;
(ii) make any capital expenditure relating to the Stations, conditioned or delayed)enter into any contract or commitment therefor, Sellers shall cause in excess of $50,000 in the Acquired Companiesaggregate, other than capital expenditures required pursuant to Section 4.4(c)(v);
(iii) sell, lease, transfer or otherwise dispose of or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Purchased Assets, other than (A) minor amounts of personal property having an aggregate value of less than $50,000 sold or otherwise disposed of in the ordinary course of the business of the Stations which would not reasonably be expected to have a material adverse effect on the business or operations of the Stations, (B) minor amounts of personal property which are replaced due to defect or obsolescence with personal property of substantially the same nature and of equal or greater quality in the ordinary course of the business of the Stations and (C) Permitted Encumbrances;
(iv) enter into any agreement providing for annual payments by the Stations in excess of $25,000, other than agreements entered into in the ordinary course of business;
(v) institute any general increase in the compensation of the employees of any Station except as and to the extent reflected in the 1996 budgets of the Stations previously made available to Buyer or as required under any existing employment agreement;
(vi) grant any bonus to any executive employee of any Station except as and to the extent reflected in the 1996 budgets of the Stations previously made available to Buyer or as required by any existing employment agreement or bonus plan; or
(vii) make any material changes in the hours of broadcast of any Station or in the format or programming policies of any Station.
(c) From the date hereof until the Closing Date, not toSeller shall:
(i) purchase operate the Owned Stations, and use its reasonable best efforts to cause the Purchased Stations to be operated, in all material respects in accordance with the FCC's rules and regulations and the FCC Authorizations and shall not fail to prosecute with due diligence any pending application to the FCC, including, without limitation, the renewal applications relating to the FCC Authorizations for the Owned Stations, and shall not cause or permit by any act, or failure to act, any of the FCC Authorizations to expire, be surrendered, adversely modified, or otherwise acquire terminated, or the FCC to institute any assets proceeding for the suspension, revocation or make material adverse modification of any capital expenditures, in each case that are material, individually or in of the aggregate, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate)FCC Authorizations;
(ii) sellmaintain insurance policies on the Owned Stations and the related Purchased Assets, lease and use its reasonable best efforts to cause insurance policies to be maintained on the Purchased Stations and the related Purchased Assets, on terms and conditions and with insurers substantially identical to or otherwise transfer or dispose of any assets of any better than those in effect immediately prior to the date hereof;
(iii) if the broadcast transmissions of the Acquired Companies Stations from their main broadcast antennae at authorized power are interrupted or impaired, use its reasonable best efforts to restore transmissions at full authorized power as soon as reasonably possible;
(including iv) protect and defend the FCC Authorizations, broadcast coverage area and signal integrity relating to Sellers each of the Owned Stations and their Affiliates use its reasonable best efforts to cause the protection and defense of the FCC Authorizations, broadcast coverage area and signal integrity relating to the Purchased Stations;
(other than v) make all capital expenditures contemplated by the Acquired Companies)capital budget of each of the Owned Stations;
(vi) that are material, either individually or spend in the aggregateaggregate substantially all of the amounts for promotion and expense contemplated in the 1996 budget of the Stations previously made available to Buyer and in the 1997 budget to be prepared by Seller;
(vii) not modify, waive or amend any provision of or right under the Exchange Agreement without the prior written consent of Buyer;
(viii) use its reasonable best efforts to consummate the Exchange Transaction and proceed diligently to exercise its rights with respect to the Business Purchased Stations; and
(other than ix) keep its books and accounts, records and files relating to the sale of inventory Stations in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies a manner consistent with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(vii) terminate or adversely amend in any material respect, or exercise any option to extend, any Lease Agreement;
(viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue any existing lines of business;
(xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or
(xvi) agree to do any of the foregoingpast practice.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior From the date hereof to the ClosingClosing Date, each Seller shall use commercially reasonable efforts to cause the Company and the Subsidiary to, and the Company shall and shall cause the Acquired Companies to Subsidiary to, operate and carry on the Business (and will use commercially reasonable efforts to cause the Funds and the Exempt Fund Clients to conduct their business) in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, the Company and the Subsidiary shall use commercially reasonable efforts consistent with good business practice to preserve the goodwill of the suppliers, contractors, licensors, employees, Clients, investors, distributors or others having business relations with the Company or the Subsidiary.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except as set forth in on Schedule 7.47.4(b), except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned withheld or delayed), Sellers the Company and the Subsidiary shall not and, where applicable, AMR shall cause AA to not:
(i) make any material change in the Acquired CompaniesBusiness or its operations, except such changes as may be required to comply with any Applicable Law;
(ii) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000 (in the aggregate for both the Company and the Subsidiary);
(iii) enter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.10;
(iv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13) other than money borrowed or advances from any of its Affiliates in the ordinary course of business;
(v) declare, set aside or make, or agree to make, any dividend or other payment or distribution of cash or assets to AMR or any of its Affiliates (other than the Company or the Subsidiary) or any other Person, other than Pre-Closing Cash Dividends that would not cause the cash and cash equivalents balance of the Company as of the Closing to be less than an amount equal to the sum of (A) $500,000; and (B) the total amount of the payments that the Company will be obligated to make under Section 8.1(k);
(vi) institute any new, or permit any increase in any existing, profit-sharing, bonus, incentive compensation (including any equity-based compensation), deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to the employees of AA seconded to it, other than as required by any such plan or Applicable Law;
(vii) make any change in the compensation of the employees of AA seconded to it, other than normal increases in annual salary to Persons who are not officers or directors in the ordinary course of business consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense of the Company;
(viii) terminate any employee of AA seconded to the Company, except as a direct result of such employee’s (i) willful failure to perform the duties or responsibilities of his or her employment, (ii) engaging in serious misconduct, or (iii) being convicted of or entering a plea of guilty to any crime;
(ix) make any change in the accounting policies applied in the preparation of the Financial Statements, unless such change is required by GAAP;
(x) make advertising, marketing or similar types of expenditures other than in the ordinary course of business, not to:
business and in amounts consistent with the practices of the Company during the twelve-month period immediately preceding the date of this Agreement (i) purchase or otherwise acquire and the Company will use commercially reasonable efforts to prevent any assets or make any capital Fund from making such expenditures, in each case that are material, individually or in the aggregate, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(iixi) make any change in the charter or by-laws of the Company or the Subsidiary or issue, sell, lease or otherwise transfer or transfer, pledge, dispose of or encumber any assets capital stock or other equity interests (or securities exchangeable, convertible or exercisable for capital stock or other equity interests);
(xii) modify the terms of any of the Acquired Companies (including to Sellers and their Affiliates (Indebtedness or other liability, other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale modifications of inventory short term debt in the ordinary course of business and other than business, or assume or guarantee the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity obligations of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Planother Person, or materially increase the benefits provided under pay, discharge or satisfy any Company Plan to any current claims, liabilities or former employee of the Acquired Companiesobligations (absolute, in each case other than as required by the terms of such Company Plan accrued, contingent or Contract or applicable Requirements of Law;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(vii) terminate or adversely amend in any material respect, or exercise any option to extend, any Lease Agreement;
(viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer depositsotherwise), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance payment, discharge or satisfaction of any securities to any liabilities in the ordinary course of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Companybusiness;
(xiii) adoptsell, modify lease (as lessor), transfer or terminate any: otherwise dispose of (i) employment, severance, retention or other agreement with including any current or former employee, officer, director, independent contractor or consultanttransfers to any Affiliate of the Company), or (ii) collective bargaining mortgage or other agreement with pledge, or impose or suffer to be imposed any Encumbrance on, a unionmaterial amount of the assets reflected on the consolidated balance sheet of the Company and the Subsidiary as of the Financial Statements Date or any assets acquired by the Company or the Subsidiary after the Financial Statements Date, in each case whether written or oralexcept for Permitted Encumbrances;
(xiv) enter into cancel any debts owed to or claims held by the Company or the Subsidiary (including the settlement of any claims or litigation) that were material to the Company and the Subsidiary taken as a new line whole other than in the ordinary course of the business or abandon or discontinue any existing lines of businessconsistent with past practices;
(xv) adopt pay or agree to pay any plan pension, retirement allowance or other employee benefit not required by any of mergerthe plans or programs described in Schedules 5.17(a) or 5.17(c) to any director, consolidationofficer, reorganizationemployee, liquidation consultant or dissolution employee of AA seconded to the Company, whether past or file present;
(xvi) enter into any new, or amend, terminate or renew any existing, employment, consulting, salary continuation, severance or termination agreement with any director, officer, employee or consultant or any employee of a petition in bankruptcy AA seconded to the Company;
(xvii) forgive any loans to any employee of AA seconded to the Company or any member of such employee’s Immediate Family, or any person controlled by such employee or his or her Immediate Family;
(xviii) enter into any new loans, leases or other agreements or transactions which, if entered into as of the date hereof, would be required to be listed on Schedule 5.28, or, except as and to the extent contemplated by Section 9.6 and Section 10.6, materially amend any such item listed on Schedule 5.28;
(xix) except as may be required to comply with Applicable Law, become obligated under any provisions new Pension Plan, Welfare Plan or other employee benefit plan, which was not in existence on the date hereof, or amend any such plan in existence on the date hereof if such amendment would have the effect of federal or state bankruptcy law or consent to the filing of materially enhancing any bankruptcy petition against it under any similar Requirements of Lawbenefits thereunder; or
(xvixx) agree to do (A) make, change or revoke any material election in respect of Taxes; (B) prepare any Tax Returns in a manner which is not consistent in all material respects with the past practice of the foregoingCompany and the Subsidiary with respect to the treatment of items on such Tax Returns; (C) file any material amendment to a Tax Return that will or may increase the Tax liability of the Company or the Subsidiary before or after the Closing; or (D) settle any claim or assessment in respect of Taxes, in each case, which would materially and adversely affect the Company and the Subsidiary, taken as a whole, before or after the Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amr Corp)
Operations Prior to the Closing Date. (a) Prior to the Closing, each Each Seller shall use its commercially reasonable efforts to, and to cause the Acquired Companies to to, operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, each Seller shall use its commercially reasonable efforts to, and shall cause the Acquired Companies to use their commercially reasonable efforts to, preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors of the Acquired Companies and others having business relations with the Acquired Companies.
(b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as required by applicable Requirements of Law, as expressly contemplated by this Agreement or with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed), Sellers shall cause the Acquired Companies, other than in the ordinary course of business, Companies not to:
(i) purchase or otherwise acquire any assets or make any capital expenditures, in each case that are material, individually or in the aggregate, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 2,000,000 in the aggregate);
(ii) sell, lease lease, license, convey, abandon or otherwise transfer or dispose of any assets assets, properties or interests of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereofconsistent with past practice);
(iii) make any loan to loan, advance or capital contribution to, or investment in, any third party;
(iv) other than in the ordinary course of business, create or otherwise incur any Encumbrance, other than Permitted Encumbrances, on any material property or asset;
(v) settle, or offer or propose to settle, (i) any material Proceeding involving the Business or any Acquired Company, except where the amount paid in settlement or compromise does not exceed the greater of (x) the amount of any reserves reflected in the Financial Statements in respect of such Proceeding, (y) the aggregate coverage provided for under any insurance policy in respect of such Proceeding, or (z) $500,000, in each case, as long as such settlement or compromise does not (A) impose any equitable relief on, or require the admission of wrongdoing by, any Acquired Company, Buyer or its Affiliates, or (B) restrict the ability of the Buyer to conduct the Business following the Closing, or (ii) any Proceeding relating to the transactions contemplated by this Agreement;
(vi) transfer any material assets to Sellers or any of their respective Affiliates (other than the Acquired Companies);
(vii) make any material changes to credit or collections practices;
(viii) create, incur or assume or agree to create, incur or assume any Indebtedness (other than money advanced from Sellers or any Affiliate of Sellers in the ordinary course of business and in a manner consistent with past practice, all of which shall be repaid, cancelled or discharged in full prior to the Closing);
(ix) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of any Acquired Company;
(x) materially increase the benefits provided under any Plan to any current or former employee of the Acquired Companies, or any current Transferring Employee, other than as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(xi) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies Companies, or any Transferring Employee, with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(vxii) establish, adopt adopt, materially amend or terminate any Company PlanPlan (or any arrangement that would be a Plan if in effect on the date of this Agreement), or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than except as required by the terms of such Company Plan or Contract or applicable advisable to comply with Requirements of Law;
(vixiii) hire any new employee to work in the Business, unless such hiring is in the ordinary course consistent with past practice and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed $150,000;
(xiv) unless required by this Agreement, transfer employees or other service providers into or out of the Acquired Companies;
(xv) implement any employee layoffs that could implicate the WARN Act;
(xvi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viixvii) terminate terminate, materially adversely modify or amend any Material Contract or enter into any Contract that would be a Material Contract if in existence as of the date hereof;
(xviii) terminate, materially adversely modify, amend in any material respect, or exercise any option to extend, any extend a Lease Agreement, or enter into any Contract that would be a Lease Agreement if in existence as of the date hereof;
(viiixix) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits)Companies, unless such change is required by GAAP or applicable Requirements of Law, or take any action that would constitute a breach of Section 5.6(h);
(ixxx) authorize for issuance, issue, deliver or sell, or create any Encumbrance (that will not be removed prior to Closing) over, or amend the terms of, or agree or commit to issue, sell or, deliver, or create any Encumbrance (that will not be removed prior to Closing) over, or amend the terms of, or grant any options, warrants, or other rights to purchase or obtain any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(xxxi) amend (A) delay or postpone any payment of any accounts payable or other payables or expenses (other than in the ordinary course of business consistent with past practice), (B) accelerate the collection of accounts receivable or cash contributions of any type (other than in the ordinary course of business consistent with past practice) or (C) ship products ahead of normally maintained schedules or shipping dates or otherwise accelerate sales or sell products in quantities that are outside of the ordinary course of business relative to the last two (2) years of sales of such products or engage in any practice that could reasonably be considered “channel stuffing” or “trade loading”;
(xxii) other than supply arrangements in the ordinary course of business consistent with past custom and practice (including with respect to quantity, quality and frequency), enter into any material transaction with any Affiliate of the Seller;
(xxiii) authorize or effect any amendment to the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue any existing lines of business;
(xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or
(xvixxiv) approve, resolve or agree to do any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller Sellers shall cause the Acquired Companies Partnership to operate and carry on the Business its business only in the ordinary course substantially as presently operated. In furtherance and not in limitation of the foregoing, the Sellers shall cause the Partnership to (i) keep and maintain its assets and properties in good operating condition and repair (normal wear and tear excepted), (ii) use commercially reasonable efforts consistent with past good business practice to maintain the business organization of the Partnership intact and substantially to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Partnership, and (iii) use commercially reasonable efforts to continue up to and including the Closing Date all existing policies of insurance in full force and effect and at least at such levels as operated immediately prior to are in effect on the date of this Agreementhereof.
(b) Without limiting the generality of Notwithstanding Section 7.4(a5.3(a), except as set forth in Schedule 7.4, as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except with the express prior written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed)the Purchaser, Sellers shall not permit or cause the Acquired CompaniesPartnership to:
(i) amend the Partnership Agreement;
(ii) issue or agree to issue (by the issuance or granting of options, warrants or rights to purchase any partnership interest or other equity interest of the Partnership or otherwise) any partnership interest or other equity interest of the Partnership or securities exchangeable for or convertible into any partnership interest or other equity interest of the Partnership or other securities;
(iii) split, combine or reclassify any Partnership Interest or except as permitted under Section 5.12, declare, set aside or pay or make any distributions (whether in cash, equity interests or other property) in respect of the Partnership Interests;
(iv) make any material change in the Partnership's business or its operations not contemplated in the Budget or, other than in the ordinary course of businessbusiness or as contemplated in the Budget, not to:
(i) purchase or otherwise acquire any assets or make any capital expenditures, expenditure in each case that are material, individually respect thereof or in respect of the purchase of assets which shall exceed $10,000 in the aggregate.
(v) enter into any material contract, to agreement, undertaking or commitment (or any extension or renewal thereof) unless such material contract, agreement, undertaking or commitment permits the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 Partnership the change in the aggregate)control contemplated in this Agreement;
(iivi) sell, lease amend or otherwise transfer or dispose consent to the amendment of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are materialcontract, either individually agreement, undertaking or commitment listed in the aggregate, to the Business (other than the sale of inventory SCHEDULE 3.12 except for amendments in the ordinary course of the Partnership's business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies consistent with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereofpast practices;
(vii) terminate cancel any existing policies or adversely amend binders of insurance or take or fail to take any action as a result of which insurers under such policies or binders could avoid liability for claims arising thereunder;
(viii) enter into any contract for the purchase of real estate or for the sale of any of the real estate listed in any material respect, SCHEDULE 3.14 or exercise any option to extendpurchase real estate or enter into any lease of real estate or terminate any lease of real estate listed in SCHEDULE 3.16 or exercise any option to extend a lease listed in SCHEDULE 3.16 without the prior written consent of Purchaser, any Lease Agreement;
(viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Lawwhich consent will not be unreasonably withheld;
(ix) issueenter into any discussion, deliver negotiation or sell any securities transaction relating to the merger or consolidation of, or the sale of any partnership interests or other equity interests of the Acquired CompaniesPartnership, or the sale, lease or other than the issuance disposition of any securities portion of its properties or business or provide any information to any of the other Acquired CompaniesPerson in connection therewith;
(x) amend the Organizational Documents initiate or acquiesce in any zoning variation or reclassification of the Acquired Companiesreal estate listed in SCHEDULE 3.14 or SCHEDULE 3.16;
(xi) accelerate, terminate, materially modify or cancel take any material Contract action referred to in clauses (including any Material Contracta) to which any though (m) of the Acquired Companies is a party or by which it is boundSection 3.8;
(xii) hire or promote make any person as or to (as change in the case may be) accounting policies applied in the position preparation of an officer of any Acquired Companythe financial statements included in SCHEDULE 3.5;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement any of the rates charged for cellular service on the Cellular System except for modifications made in the ordinary course of the Partnership's business consistent with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oralpast practices;
(xiv) enter into a new line of business hire any manager or abandon or discontinue any existing lines of businessemployee;
(xv) adopt enter into or modify any plan agreements for roaming service except for modifications made in the ordinary course of the Partnership's business consistent with past practices;
(xvi) enter into any lease or agreement to purchase goods or services involving more than $200,000 which has a term greater than six (6) months or which cannot be terminated by the Partnership without cost or penalty;
(xvii) transfer, assign, pledge, dispose of or encumber any Interest directly, by operation of law, merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under otherwise;
(xviii) incur any provisions of federal or state bankruptcy law or consent indebtedness to any Seller (other than the filing System Manager), an Affiliate of any bankruptcy petition against it under Seller or any similar Requirements other Person;
(xix) terminate any Agent except upon a breach by such Agent of Lawits agency contract with the Partnership; or
(xvixx) agree agree, or commit to do do, or authorize any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall use its commercially reasonable efforts to, and to cause the Acquired Companies to to, operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts, and shall cause the Companies to use their commercially reasonable efforts, consistent with good business practice, to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except as set forth in Schedule 7.4, except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned withheld or delayed), Sellers Seller shall cause not (in respect of the Acquired CompaniesBusiness), other than and shall not permit the Companies (in respect of the ordinary course of businessBusiness), not to:
(i) make any material change in the Business or their operations, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) purchase or otherwise acquire any assets or make any capital expendituresexpenditures constituting Assets, in each case that are material, individually or in the aggregate, to the Business as a whole (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(iiA) sell, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale purchases of inventory in the ordinary course of business consistent with past practice, (B) capital expenditures contemplated by the 2005 Seller Capital Budget, (C) capital expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by Seller or any of the Companies, (D) capital expenditures required by any Governmental Body and other than the disposition of obsolete assets or other assets (E) such capital expenditures not used covered by clauses (A) through (D) above that do not exceed $1,000,000 in the Business during the twelve (12) months preceding the date hereofaggregate);
(iii) make exercise any loan option to any third partyextend a lease listed in Exhibit F;
(iv) materially create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money with respect to the Business (other than money borrowed or advances from any of its Affiliates in the ordinary course of business) or grant any Encumbrance with respect to the Assets, in each case other than Permitted Encumbrances, Permitted Real Property Exceptions and Encumbrances imposed by the Credit Agreement;
(v) transfer any material assets (other than cash in excess of Register and Store Safe Cash prior to the Effective Time) to any Affiliate other than a Company or Seller;
(vi) institute any material increase in the base salarybenefits available in any profit-sharing, wages bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or bonus opportunity of any other employee benefit plan with respect to employees of the Acquired Companies with an annual base salary of more Business, other than $150,000, except as expressly required by the terms of any Plan such plan as in effect on the date of this Agreement or Contract or pursuant to Requirements of Law;
(vvii) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan (A) grant to any current Key Employee any increase in compensation or former other benefits (including any bonus, severance or retention agreements) or grant to any employee of the Acquired CompaniesBusiness any material increase in compensation or other benefits (including any bonus, severance or retention agreements) except as may be required under existing agreements set forth in each case other than Schedule 5.5 or in the ordinary course of business consistent with past practice or (B) designate any employee of the Business as required by a participant in the terms Severance Pay Plan pursuant to Section 2.A(ii) of such Company Plan or Contract or applicable Requirements of Lawthe Severance Pay Plan;
(viviii) enter into or amend any collective bargaining agreement;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viix) terminate sell or otherwise dispose of any assets that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xi) materially adversely modify or amend in any material respect, or exercise any option to extend, any Lease Business Agreement;
(viiixii) make any material change in the accounting methods or policies applied in the preparation of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits)Financial Statements, unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired CompanyGAAP;
(xiii) adopt, modify intentionally waive in writing any right of any material value of or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oralrespect to the Business;
(xiv) enter into a new line any material agreement, contract or arrangement with any of business its Affiliates relating to the Business that is being assigned to or abandon or discontinue any existing lines of businessassumed by Buyer under this Agreement;
(xv) adopt create any plan new gift certificate, gift card, merchandise voucher, coupon or refund program for the Business or amend in any material respect the Seller Gift Programs, in each case, other than in the ordinary course of mergerbusiness consistent with past practice;
(xvi) create any new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xvii) prior to July 5, consolidation2005 (A) place any orders for spring 2006 merchandise bearing the private label brands of Seller and other brands owned by third parties licensed to Seller ("Private Brand Merchandise") or (B) place any fill-in orders for Private Brand Merchandise for delivery after November 15, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law2005; or
(xvixviii) agree to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Belk Inc)
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall cause the Acquired Companies to operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement.
Except (bx) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as required by applicable Requirements Section 8.4 of Law, as expressly contemplated by this Agreement the Disclosure Schedules or (y) with the prior written consent approval of Buyer Partner (which Buyer Partner agrees shall not be unreasonably withheld, conditioned or delayed), Sellers Xxxxxxx shall and shall cause the Acquired Companies, other than JV Entity and its subsidiaries to (i) operate and carry on the Business in the ordinary course and substantially as operated immediately prior to the date of businessthis Agreement and (ii) use its commercially reasonable efforts to preserve intact, the assets, goodwill and business organization, keep available the services of the Business Employees, and to preserve the present business relationships of the Business including relationships with suppliers, contractors, licensors, customers, distributors and others having business relations with the Business.
(b) Notwithstanding Section 8.4(a), except (x) as set forth in Section 8.4 of the Disclosure Schedule, (y) as contemplated by this Agreement or (z) with the written approval of Partner (which Partner agrees shall not to:be unreasonably withheld, conditioned or delayed), Xxxxxxx shall not and shall cause the JV Entity and its subsidiaries not to (in each case, in respect of the Business):
(i) make any material change in the Business or the Transferred Assets, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) purchase or otherwise acquire any assets or make any capital expendituresexpenditures constituting Transferred Assets, in each case that are material, individually or in the aggregate, to the Business as a whole (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(iiA) sell, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets consistent with past practice or other assets not used in the Business during the twelve (12B) months preceding the date hereofas required by any Governmental Body);
(iii) make any loan grant to any third party;
Business Employee any material increase in any compensation or benefits (iv) materially increase excluding any arrangements that do not involve payments extending past the base salaryClosing Date), wages other than changes made in the ordinary course of business consistent with past practice or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract existing Contracts or applicable Requirements of Law;
(iv) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money (other than money borrowed or advances from any of their respective Affiliates in the ordinary course of business);
(v) make any change in any method of financial accounting or financial accounting policies, practices or procedures used by or with respect to the Business, other than such changes as are required by or necessary to comply with GAAP;
(vi) fail to manage its working capital in the ordinary course of business consistent with past practices (including (A) deferring, delaying or postponing the payment of accounts payable or other liabilities or obligations other than in the ordinary course of business consistent with past practices, (B) accelerating the collection of accounts receivable other than in the ordinary course of business consistent with past practices or (C) failing to manage or purchase inventory in the ordinary course of business consistent with past practices); provided, however, that notwithstanding anything in this Agreement to the contrary, on or prior to the Closing, the JV Entity and its subsidiaries shall be permitted to make distributions of cash or cash equivalents to Xxxxxxx or its Affiliates in Xxxxxxx’ sole discretion;
(vii) enter into or amend any collective bargaining agreement;
(viii) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viiix) terminate or adversely amend sell, transfer, license (other than granting non-exclusive licenses to customers in any material respectthe ordinary course of business consistent with the past practices), abandon, or exercise otherwise dispose of any option to extendassets (other than cash or cash equivalents) that are material, any Lease Agreement;
(viii) make any material change either individually or in the accounting methods aggregate, to the Business or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired CompaniesTransferred Assets;
(x) materially adversely modify, amend the Organizational Documents of the Acquired Companiesor terminate any Business Agreement that constitutes a Transferred Asset;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify amend or terminate any: (i) employment, severance, retention the License Agreement or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue any existing lines of business;
(xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of LawTransition Services Agreement; or
(xvixii) agree to do any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Prior Each of the Sellers shall use its reasonable best efforts to the Closing, each Seller shall cause the Acquired Companies and the Subsidiaries to operate and carry on the Strategies Business and the Services Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, the Sellers shall cause each of the Companies and the Subsidiaries to use its reasonable best efforts consistent with good business practice to preserve its work force as presently constituted, and the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies and the Subsidiaries.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except as set forth in on Schedule 7.4, as required by applicable Requirements of Law, as expressly contemplated by provided in this Agreement or except with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheldBuyer, conditioned or delayed), the Sellers shall cause the Acquired Companies, other than in Companies and the ordinary course of business, Subsidiaries not to:
(i) purchase or otherwise acquire any assets or make any capital expendituresmaterial change in Strategies Business, in each case that are material, individually the Services Business or in the aggregate, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(ii) sell, lease or otherwise transfer or dispose operations of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000such Businesses, except such changes as may be required by the terms of to comply with any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law;
(ii) make any capital expenditures or enter into any contracts or commitments therefor that, in the aggregate, involve payment in excess of $500,000;
(iii) enter into any contract for the purchase of real property, enter into any lease of real property, exercise any option to extend a lease listed in Schedule 5.9 or enter into any lease for tangible personal property which provides for annual rental payments of $25,000 or more;
(iv) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business);
(v) make, or agree to make, any distribution (whether by dividend, redemption or otherwise) of assets (other than cash) to FDC, FFMC or any of their Affiliates;
(vi) acquire (x) change any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to its employees, other than as required by merging any such plan or consolidating withRequirements of Law or (y) make any loan or advance to or enter into any non-arm's length transaction with any officer, director, stockholder or by purchasing a substantial portion Affiliate of the capital stock Companies or assets of, directly or indirectly, any the Subsidiaries (except for ordinary travel and business or any corporation, partnership, association or other business organization or division thereofexpense payments made in the ordinary course);
(vii) terminate or adversely amend increase the compensation of any employee, other than changes made in any material respect, or exercise any option to extend, any Lease Agreementaccordance with normal compensation practices and consistent with past compensation practices;
(viii) make any material change in the accounting methods or policies applied in the preparation of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of LawCut-Off Date Financial Statements;
(ix) issue, deliver make any change in the charter or sell by-laws of either Company or any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired CompaniesSubsidiary;
(x) amend relinquish any material contract or contract right, except in the Organizational Documents of ordinary course, or compromise any account receivable that was reflected in the Acquired CompaniesCut-Off Date Balance Sheet;
(xi) acceleratesell, terminateassign, materially modify transfer or cancel any material Contract (including any Material Contract) to which bulk reinsure any of its assets (tangible or intangible), except in the Acquired Companies is a party or by which it is boundordinary course;
(xii) hire or promote enter into any person as or contract which, if entered into prior to the date hereof, would have been required to be set forth in Schedule 5.14 pursuant to clauses (as the case may bei), (ii) the position and (iv) through (xi) of an officer of any Acquired CompanySection 5.14;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with take any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with action which would cause a union, failure of the conditions contained in each case whether written or oral;Article IX; or
(xiv) enter into a new line of business any commitment (contingent or abandon or discontinue any existing lines of business;
(xvotherwise) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or
(xvi) agree to do any of the foregoing. Buyer's right to consent to or withhold consent to any of the above-described actions of the Companies and of the Subsidiaries does not create any duty of Buyer to the Companies or the Subsidiaries, and Buyer shall have no liability to any Company, Subsidiary or Seller Group Member in connection with any action (including the failure or refusal to consent to any proposed action) taken by Buyer under this Section 7.4(b).
(c) The Sellers agree promptly to notify Buyer upon receiving any notice that any customer with more than 1,000 covered employees is canceling, terminating or electing not to renew its relationship with the Companies or the Subsidiaries.
Appears in 1 contract
Samples: Stock Purchase Agreement (Healthcare Compare Corp/De/)
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall use its commercially reasonable efforts to, and to cause the Acquired Companies to to, operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts, and shall cause the Companies to use their commercially reasonable efforts, consistent with good business practice, to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except as set forth in Schedule 7.4, except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except with the prior express written consent approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned withheld or delayed), Sellers Seller shall cause not (in respect of the Acquired CompaniesBusiness), other than and shall not permit the Companies (in respect of the ordinary course of businessBusiness), not to:
(i) make any material change in the Business or their operations, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) purchase or otherwise acquire any assets or make any capital expendituresexpenditures constituting Assets, in each case that are material, individually or in the aggregate, to the Business as a whole (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(iiA) sell, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale purchases of inventory in the ordinary course of business consistent with past practice, (B) capital expenditures contemplated by the 2005 Seller Capital Budget, (C) capital expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by Seller or any of the Companies, (D) capital expenditures required by any Governmental Body and other than the disposition of obsolete assets or other assets (E) such capital expenditures not used covered by clauses (A) through (D) above that do not exceed $1,000,000 in the Business during the twelve (12) months preceding the date hereofaggregate);
(iii) make exercise any loan option to any third partyextend a lease listed in Exhibit F;
(iv) materially create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money with respect to the Business (other than money borrowed or advances from any of its Affiliates in the ordinary course of business) or grant any Encumbrance with respect to the Assets, in each case other than Permitted Encumbrances, Permitted Real Property Exceptions and Encumbrances imposed by the Credit Agreement;
(v) transfer any material assets (other than cash in excess of Register and Store Safe Cash prior to the Effective Time) to any Affiliate other than a Company or Seller;
(vi) institute any material increase in the base salarybenefits available in any profit-sharing, wages bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or bonus opportunity of any other employee benefit plan with respect to employees of the Acquired Companies with an annual base salary of more Business, other than $150,000, except as expressly required by the terms of any Plan such plan as in effect on the date of this Agreement or Contract or pursuant to Requirements of Law;
(vvii) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan (A) grant to any current Key Employee any increase in compensation or former other benefits (including any bonus, severance or retention agreements) or grant to any employee of the Acquired CompaniesBusiness any material increase in compensation or other benefits (including any bonus, severance or retention agreements) except as may be required under existing agreements set forth in each case other than Schedule 5.5 or in the ordinary course of business consistent with past practice or (B) designate any employee of the Business as required by a participant in the terms Severance Pay Plan pursuant to Section 2.A(ii) of such Company Plan or Contract or applicable Requirements of Lawthe Severance Pay Plan;
(viviii) enter into or amend any collective bargaining agreement;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viix) terminate sell or otherwise dispose of any assets that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xi) materially adversely modify or amend in any material respect, or exercise any option to extend, any Lease Business Agreement;
(viiixii) make any material change in the accounting methods or policies applied in the preparation of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits)Financial Statements, unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired CompanyGAAP;
(xiii) adopt, modify intentionally waive in writing any right of any material value of or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oralrespect to the Business;
(xiv) enter into a new line any material agreement, contract or arrangement with any of business its Affiliates relating to the Business that is being assigned to or abandon or discontinue any existing lines of businessassumed by Buyer under this Agreement;
(xv) adopt create any plan new gift certificate, gift card, merchandise voucher, coupon or refund program for the Business or amend in any material respect the Seller Gift Programs, in each case, other than in the ordinary course of mergerbusiness consistent with past practice;
(xvi) create any new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xvii) prior to July 5, consolidation2005 (A) place any orders for spring 2006 merchandise bearing the private label brands of Seller and other brands owned by third parties licensed to Seller (“Private Brand Merchandise”) or (B) place any fill-in orders for Private Brand Merchandise for delivery after November 15, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law2005; or
(xvixviii) agree to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Saks Inc)
Operations Prior to the Closing Date. (a) Prior Except as (i) set forth in Schedule 7.4, (ii) expressly contemplated by this Agreement (including the plan of reorganization as detailed in Schedule 7.6)), (iii) with the written approval of Buyer (not to the Closingbe unreasonably withheld, each conditioned or delayed) or (iv) as may be required to comply with any applicable Requirements of Law, Seller Parent shall, and shall cause each of the Acquired Companies Business Subsidiaries and Asset Sellers to, use its reasonable best efforts (i) to operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this AgreementAgreement and (ii) to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business.
(b) Without limiting the generality of Notwithstanding Section 7.4(a), except (A) as set forth in Schedule 7.4, as required by applicable Requirements of Law, (B) as expressly contemplated by this Agreement or (including the plan of reorganization as detailed in Schedule 7.6)), (C) with the prior written consent approval of Buyer (which Buyer agrees shall not to be unreasonably withheld, conditioned or delayed)) or (D) as may be reasonably required to comply with any applicable Requirements of Law, Sellers Seller Parent shall cause the Acquired CompaniesAsset Sellers (with respect to the Business), other than in the ordinary course of business, Business Subsidiaries and the Aon India Affiliates (with respect to the Business) not to:
(i) make any material change in the Business;
(ii) purchase or otherwise acquire any assets or make any capital expenditures, expenditures in each case that are material, individually or excess of $8,000,000 in the aggregate, to the Business aggregate per month (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 (A) in the aggregateordinary course of business or (B) as required by any Governmental Body);
(iiiii) sellgrant to any Business Employee any increase in cash compensation, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies consistent with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract past practice or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract existing contractual commitments or applicable Requirements of Law;
(iv) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money (other than money borrowed or advances from any of their respective Affiliates in the ordinary course of business consistent with past practice) or that will be settled or repaid in full, or canceled or terminated, at or prior to Closing);
(v) institute any increase in benefits (including any severance or termination pay) provided pursuant to, or enter into, amend, adopt or terminate, a Seller Benefit Plan, including establishing or amending any Business Subsidiary Plan or, with respect to Continuing Employees, establishing or amending any Seller Benefit Plan, accelerating the vesting or payment of, or funding or in any other way securing the payment, compensation or benefits under any Seller Benefit Plan, other than (x) as required by any such plan or Requirements of Law, (y) any change, acceleration, vesting, funding or securing, or establishment of a plan that is generally applicable to employees of Seller Parent and its Affiliates or (z) in the ordinary course of business;
(vi) terminate, transfer or modify the job responsibilities of (i) any Business Employee as of the date of this Agreement in a manner that would result in such Person no longer meeting the definition of Business Employee (except for terminations for cause in the ordinary course of business and consistent with past practices); or (ii) a Retained Employee as of the date of this Agreement in a manner that would result in such Person becoming a Business Employee;
(vii) hire any new Business Employees or engaged any new independent contractors in the Business, having an annual base salary and cash incentive compensation opportunity that exceeds $125,000 or terminate the employment or service of any Former Business Employee with an annual base salary and cash incentive compensation that exceeds $125,000, unless such unless such hiring, engagement or termination was in the ordinary course of business consistent with past practice;
(viii) (A) enter into, modify, amend, or terminate any collective bargaining agreement, works council agreement, or any other labor-related agreements or arrangements with any labor union, labor organization or works council or (B) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any Business Employees;
(ix) implement any Business Employee layoffs that create any notice or other obligation under the WARN Act;
(x) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viixi) terminate sell, lease, transfer, assign, license, mortgage or adversely amend otherwise subject to an Encumbrance (except Permitted Encumbrances), permit to lapse or expire, dedicate to the public or otherwise dispose of any Purchased Assets (other than cash or cash equivalents) that are material, either individually or in any material respectthe aggregate, or exercise any option to extend, any Lease Agreementthe Business;
(viiixii) disclose any Business Trade Secrets, other than pursuant to written confidentiality agreements entered into in the ordinary course of business and including reasonable protections of such Business Trade Secrets;
(1) adversely modify, amend or terminate any Business Agreement other than in the ordinary course of business (it being acknowledged and agreed that renewals of Business Agreements occur routinely and any such renewal that would not reasonably be expected to have a Material Adverse Effect shall be deemed to have occurred in the ordinary course of business), (2) waive, release, or assign any material rights or claims of Seller Parent or any Selling Party primarily relating to the Business or the Purchased Assets, other than waivers or releases thereof in the ordinary course of business, (3) enter into any new Contract that would be a Business Agreement that would be a Purchased Asset and pursuant to its terms cannot be assigned to Buyer or that contains a change of control provision in favor of the other party or parties thereto or would otherwise require a payment or give use to any right to such other party or parties on connection with any transaction contemplated by this Agreement or (4) agree to provide any Cross Segment Service (as such term is defined in the Subcontract Agreement) other than in the ordinary course of business;
(xiv) waive or amend any confidentiality agreement between Seller Parent or any Selling Party and any Person to the extent such waiver or amendment adversely affects the confidentiality of material information related to the Business in a manner that would reasonably be expected to be adverse to the Business, taken as a whole;
(xv) make any change in the Business’s financial accounting principles, policies and practices applied in the preparation of the Financial Statements, except insofar as may have been required by any Requirements of Law or change in GAAP or to the extent made with respect to the Retained Business;
(xvi) settle or compromise any pending or threatened actions, suits or proceedings primarily relating to the Business involving (i) any limitations on or requirements of conduct of to the Business that would reasonably be expected to materially harm the Business or (ii) payment to or by the Business in excess of $1,000,000 in any single instance or in excess of $5,000,000 in the aggregate;
(xvii) with respect to the Business Subsidiaries only, make any material change in the accounting methods its certificate of incorporation or policies of the Acquired Companies formation or by-laws or operating agreement (including in its cash management practices and its policiesor similar organizational documents) or issue any capital stock or equity securities (or securities exchangeable, practices and procedures with respect to collection of accounts receivable, establishment of reserves convertible or exercisable for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer depositscapital stock or equity securities), unless such change is required by GAAP or applicable Requirements of Law;
(ixxviii) issuemake or change any material Tax election, deliver change any annual Tax accounting period, adopt or sell change any securities material method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any closing agreement relating to Taxes or obtain or request any Tax ruling, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to or request any extension or waiver of the Acquired Companies, other than the issuance of any securities limitation period applicable to any of the other Acquired CompaniesTax claim;
(xxix) amend the Organizational Documents of the Acquired Companies;
(xi) accelerateconstruct, terminatebuild, materially modify acquire or cancel lease any material Contract (new data center, including any Material Contract) to which any of the Acquired Companies is a party by acquiring, moving or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue setting up any existing lines or new technology hardware or software (provided, that, for the avoidance of business;
(xv) adopt any plan doubt, the foregoing shall not restrict ordinary course maintenance of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Lawexisting data centers); or
(xvixx) authorize or agree to do any of the foregoing. Nothing in this Section 7.4 shall be deemed to limit the transfer of Excluded Assets from the Business Subsidiaries prior to the Closing.
Appears in 1 contract
Samples: Purchase Agreement (Aon PLC)
Operations Prior to the Closing Date. Except (aw) Prior to the Closing, each Seller shall cause the Acquired Companies to operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement.
(b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as required by applicable Requirements of Law, (x) as set forth on Schedule 5.4, (y) as otherwise expressly contemplated by set forth in or required pursuant to this Agreement, the MSR Purchase Agreement, the Mortgage Loan Purchase Agreement or the Pipeline Agreements or (z) with the prior written consent approval of Buyer (which Buyer agrees approval shall not be unreasonably withheld, conditioned or delayed), Sellers Seller shall, and shall cause its Subsidiaries to, operate and carry on the Acquired Companies, other than Business only (A) in the ordinary course consistent with past practice and (B) in compliance with applicable Requirements of businessLaw. Without limiting the generality of the foregoing, except as set forth on Schedule 5.4 or with the written approval of Buyer (which, solely in the case of clauses (d) and (h), shall not be unreasonably withheld, conditioned or delayed), Seller shall not, and shall cause its Subsidiaries not to:
: (ia) purchase or otherwise acquire any assets or make any material change in the nature of the Business; (b) make any advances, capital contributions, investments or capital expenditures, in each case that are material, individually including to or in the aggregateany Subsidiaries or Affiliates of Seller, to the Business (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 250,000 in the aggregate);
; (iic) sell, enter into any Contract for the purchase or lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (real property other than real property that would constitute Mortgage Assets under the Acquired Companies)Mortgage Loan Purchase Agreement; (d) that are material, either individually initiate or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) make settle any loan to any third party;
(iv) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract or applicable Requirements of Law;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(vii) terminate or adversely amend in any material respect, or exercise any option to extend, any Lease Agreement;
(viii) make any material change in the accounting methods or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(x) amend the Organizational Documents of the Acquired Companies;
(xi) accelerate, terminate, materially modify or cancel any material Contract (including any Material Contract) to which any of the Acquired Companies is a party or by which it is bound;
(xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify or terminate any: Action (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, for amounts payable by Seller and its Subsidiaries in excess of $250,000 in the aggregate or (ii) collective bargaining that would bind, impose relief (other than monetary damages) on or other agreement require ongoing compliance by or with a unionrespect to, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue Buyer, any existing lines of business;
(xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or
(xvi) agree to do any of the foregoing.of
Appears in 1 contract
Samples: Asset Purchase Agreement (Finance of America Companies Inc.)
Operations Prior to the Closing Date. (a) Prior to the Closing, each Seller shall cause the Acquired Companies to operate and carry on the Business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement.
Except (bx) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as required by applicable Requirements Section 8.4 of Law, as expressly contemplated by this Agreement the Disclosure Schedules or (y) with the prior written consent approval of Buyer Partner (which Buyer Partner agrees shall not be unreasonably withheld, conditioned or delayed), Sellers Xxxxxxx shall and shall cause the Acquired Companies, other than JV Entity and its subsidiaries to (i) operate and carry on the Business in the ordinary course and substantially as operated immediately prior to the date of businessthis Agreement and (ii) use its commercially reasonable efforts to preserve intact, the assets, goodwill and business organization, keep available the services of the Business Employees, and to preserve the present business relationships of the Business including relationships with suppliers, contractors, licensors, customers, distributors and others having business relations with the Business.
(b) Notwithstanding Section 8.4(a), except (x) as set forth in Section 8.4 of the Disclosure Schedule, (y) as contemplated by this Agreement or (z) with the written approval of Partner (which Partner agrees shall not to:be unreasonably withheld, conditioned or delayed), Xxxxxxx shall not and shall cause the JV Entity and its subsidiaries not to (in each case, in respect of the Business):
(i) make any material change in the Business or the Transferred Assets, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) purchase or otherwise acquire any assets or make any capital expendituresexpenditures constituting Transferred Assets, in each case that are material, individually or in the aggregate, to the Business as a whole (other than capital expenditures that do not exceed $500,000 individually or $1,500,000 in the aggregate);
(iiA) sell, lease or otherwise transfer or dispose of any assets of any of the Acquired Companies (including to Sellers and their Affiliates (other than the Acquired Companies)) that are material, either individually or in the aggregate, to the Business (other than the sale of inventory in the ordinary course of business and other than the disposition of obsolete assets consistent with past practice or other assets not used in the Business during the twelve (12B) months preceding the date hereofas required by any Governmental Body);
(iii) make any loan grant to any third party;
Business Employee any material increase in any compensation or benefits (iv) materially increase excluding any arrangements that do not involve payments extending past the base salaryClosing Date), wages other than changes made in the ordinary course of business consistent with past practice or bonus opportunity of any employee of the Acquired Companies with an annual base salary of more than $150,000, except as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(v) establish, adopt or terminate any Company Plan, or materially increase the benefits provided under any Company Plan to any current or former employee of the Acquired Companies, in each case other than as required by the terms of such Company Plan or Contract existing Contracts or applicable Requirements of Law;
(iv) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money (other than money borrowed or advances from any of their respective Affiliates in the ordinary course of business);
(v) make any change in any method of financial accounting or financial accounting policies, practices or procedures used by or with respect to the Business, other than such changes as are required by or necessary to comply with GAAP;
(vi) fail to manage its working capital in the ordinary course of business consistent with past practices (including (A) deferring, delaying or postponing the payment of accounts payable or other liabilities or obligations other than in the ordinary course of business consistent with past practices, (B) accelerating the collection of accounts receivable other than in the ordinary course of business consistent with past practices or (C) failing to manage or purchase inventory in the ordinary course of business consistent with past practices); provided, however, that notwithstanding anything in this Agreement to the contrary, on or prior to the Closing, the JV Entity and its subsidiaries shall be permitted to make distributions of cash or cash equivalents to Xxxxxxx or its Affiliates in Xxxxxxx’ sole discretion;
(vii) enter into or amend any collective bargaining agreement;
(viii) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(viiix) terminate or adversely amend sell, transfer, license (other than granting non-exclusive licenses to customers in any material respectthe ordinary course of business consistent with the past practices), abandon, or exercise otherwise dispose of any option to extendassets (other than cash or cash equivalents) that are material, any Lease Agreement;
(viii) make any material change either individually or in the accounting methods aggregate, to the Business or policies of the Acquired Companies (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(ix) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired CompaniesTransferred Assets;
(x) materially adversely modify, amend the Organizational Documents of the Acquired Companiesor terminate any Business Agreement that constitutes a Transferred Asset;
(xi) accelerate, terminate, materially modify amend or cancel any material Contract (including any Material Contract) to which any of terminate the Acquired Companies is a party License Agreement or by which it is bound;
the Transition Services Agreement; or (xii) hire or promote any person as or to (as the case may be) the position of an officer of any Acquired Company;
(xiii) adopt, modify or terminate any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) collective bargaining or other agreement with a union, in each case whether written or oral;
(xiv) enter into a new line of business or abandon or discontinue any existing lines of business;
(xv) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law; or
(xvi) agree to do any of the foregoing.
Appears in 1 contract
Samples: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.)
