Ordinary Course. (a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business: (i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction; (ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice; (iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets; (iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice; (v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000); (vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates; (vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices; (viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein; (ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice; (x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies; (xi) settle, release or forgive any claim or litigation or waive any right; (xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or (xiii) agree, resolve or commit to do any of the foregoing. (b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business: (i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice; (ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted; (iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice; (iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and (v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Ordinary Course. Each of MicroLegend and its Subsidiaries will carry on its business in substantially the same manner as has heretofore been conducted and not make any material change in its Articles of Incorporation or By-laws (a) From except as contemplated by the date hereof Acquisition), the personnel, operations, finance, accounting practices or policies or assets, maintain its properties and until assets and all parts thereof in good working order and condition, ordinary wear and tear excepted, perform all of its obligations under the earlier of the Closing Date Material Agreements and not enter into, amend or the termination of this terminate any Material Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business except in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except business, take all reasonable actions necessary and appropriate to obtain appropriate releases, consents, estoppels and other instruments as required or expressly permitted pursuant PTI may reasonably request, neither cancel, nor allow to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:
(i) lapse nor make any material change in the conduct coverage of any insurance policy applicable to MicroLegend or any of its Subsidiaries, pay all Taxes as they become due, confer with PTI prior to the Business filing of any tax return, protest or notice of objection by it or any of its Subsidiaries and not take any position with respect to Taxes to which PTI reasonably objects, use its best efforts to maintain and preserve its business organization intact, retain employees at the facilities occupied by MicroLegend (except for employment terminations in accordance with past practices), maintain relationships with suppliers, customers and others having business relations with MicroLegend consistent with the terms of such relationships, and take such other actions as conducted as are necessary to cause the smooth, efficient and successful transition of such business operations and employee and other relations at the Execution Closing Date, neither make offers of employment to any Persons for periods subsequent to the Closing Date or (except for offers made in the ordinary course for employment on an at will basis), nor enter into any material transaction;
(ii) make Employee Plan with respect thereto, nor incur or agree to incur any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value liability not in the ordinary course of business consistent with past practice;
(iii) subject business, except for those offers, Employee Plans and liabilities currently under negotiation and identified in Schedule 6.1, neither adopt nor amend in any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to material respect any Employee Benefit Plan), grant not increase the compensation, in any increase in the compensation form, payable or to become payable to any director, officer, employee, consultant or agent, except in accordance with pre-existing contractual provisions or for employees' compensation increases in the ordinary course of business consistent in accordance with past practiceexisting personnel policies, except as set forth in Schedule 6.1, not incur any indebtedness or hire guarantee any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies indebtedness except in the ordinary course of business consistent with past practices;
(viii) take , nor issue any debt securities, not create or assume any mortgage, pledge or other lien or encumbrance upon any of its assets, irrespective of when acquired, other than Permitted Encumbrances, neither acquire nor agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other action that would cause manner, any Person, neither make nor authorize any purchase order or capital expenditure in excess of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct $10,000 except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) or except as set forth on identified in Schedule 6.1(a)(x6.1, neither sell, lease, assign nor otherwise transfer or dispose of any assets (other than supplies), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies except in the ordinary course of business consistent with past practice;
(iv) keep and maintain business, not amend, terminate or waive any right related to the books of accountMicroLegend business, records and files of the Companies except in the ordinary course of business, and not take any other action outside the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain that would materially adversely affect the existing business relationships with the suppliers and customers operations of the Companies other than relationships not economically beneficial to the CompaniesMicroLegend or any of its Subsidiaries.
Appears in 1 contract
Sources: Share Acquisition Agreement (Performance Technologies Inc \De\)
Ordinary Course. Except as otherwise expressly contemplated or permitted by this Agreement, or to the extent that Kodak otherwise consents in writing, which consent will not be unreasonably withheld, conditioned or delayed (based on the standard of a reasonable acquiror of a business), each of Encad and its Subsidiaries will:
(a) From except as set forth in Section 6.1(a) of the Encad Disclosure Letter, carry on the Business in substantially the same manner as has heretofore been conducted and not make any material change in the personnel, operations, finance, business strategies or policies, accounting practices or policies or assets of the Business, except that Encad may fill, on an at-will basis, any vacancies existing as of the date hereof in any positions below the level of director and until vice president, replace, on an at-will basis, positions below the earlier level of director and vice president that become vacant after the Closing Date or the termination of this Agreement pursuant to Article X, Seller shalldate hereof, and shall cause each terminate the employment of any employee for performance-related reasons;
(b) maintain its assets in good working order and condition, ordinary wear and tear excepted;
(c) perform all of its material obligations under the Companies toMaterial Agreements and not enter into, conduct the Business amend or terminate any Material Agreement except in the ordinary course of business, consistent with past practice. Without practices;
(d) take all reasonable actions necessary and appropriate to obtain appropriate releases, consents, estoppels and other instruments as Kodak may reasonably request;
(e) neither cancel, nor allow to lapse (without being replaced), nor make any material change in, the coverage of any insurance policy applicable to Encad or any of its Subsidiaries, and promptly notify Kodak of any event or circumstance that may be covered by any such policy;
(f) pay all Taxes as they become due, confer with Kodak prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereoffiling of any Tax protest by it or any of its Subsidiaries and not take any position with respect to Taxes to which Kodak reasonably objects;
(g) maintain (and, with respect to those Encad Permits expiring between the date hereof and the Closing Date, Seller shall not, renew and shall not permit any of the Companies to, with respect to the Business:
(imaintain) make any material change all Encad Permits in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereoffull force and effect, except transactions pursuant those as could not reasonably be expected to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will nothave, individually or in the aggregate, have a an Encad Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the AssetsEffect;
(ivh) enter into immediately notify Kodak should Encad or any new of its Subsidiaries receive any request for information, notice or order, or become aware of any Encumbrance, Claim or threat of Claim relating to an alleged unauthorized Release of any Hazardous Substance on, about or beneath the Real Property (or amend any existingportion thereof) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, other environmental contamination or liability with respect to be in the ordinary course of business consistent with past practice;
Real Property (v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000portion thereof);
(vii) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices, maintain and preserve its business organization intact, retain employees at the Business, maintain relationships with suppliers, customers, employees and others having business relations with the Business consistent with the terms of such relationships as of the date hereof, and use commercially reasonable efforts to cause the smooth, efficient and successful transition of such business operations and employee and other relations at the Effective Time;
(viiij) take except as set forth in Section 6.1(a), neither (x) make offers of employment to any other action that would cause Persons for periods subsequent to the Effective Time (except for offers made in the ordinary course of business, consistent with past practices, for employment on an at-will basis), nor (y) enter into any U.S. Employee Plan, Non-U.S. Employee Plan or Contract with respect thereto, nor (z) except as contemplated by the arrangements disclosed in sections 4.14 and 4.15 of the representations and warranties made by Seller Encad Disclosure Letter, incur or agree to incur any liability not in any the ordinary course of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth thereinbusiness, consistent with past practices;
(ixk) make any change neither adopt nor amend in any method of accounting material respect any U.S. Employee Plan or accounting principle, method, estimate or practiceNon-U.S. Employee Plan, except for amendments required to comply with applicable Laws and made with reasonable prior notice to Kodak;
(l) not increase the compensation, in any such change required form (including the awarding of special bonuses or other special remuneration), payable or to become payable to any director, officer, employee, consultant or agent, except for employees' compensation increases in the ordinary course of business, consistent with past practices, in accordance with existing personnel policies, and except as set forth in section 6.1(l) of the Encad Disclosure Letter;
(m) not grant any severance or termination compensation, except pursuant to the employment agreements contemplated by reason of a concurrent change in GAAPSections 6.13(c) and 9.2(l);
(n) not incur any indebtedness or guarantee any indebtedness, or write down the value of any inventory or write off as uncollectible any accounts receivable other than except for trade payables incurred in the ordinary course of business consistent with past practicepractices, nor issue any debt securities;
(o) not create or assume any Encumbrance upon any of its assets, irrespective of when acquired, other than Permitted Encumbrances;
(p) neither acquire nor agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, any Person;
(q) neither make nor authorize any purchase order or capital expenditure in excess of $50,000 individually or $500,000 in the aggregate, except in the ordinary course of business, consistent with past practices;
(r) neither sell, lease, assign, exchange, license or otherwise transfer, dispose of or grant rights to, any assets, except in the ordinary course of business, consistent with past practices;
(s) not revalue any assets, except in the ordinary course of business, consistent with past practices, or as required by GAAP;
(t) not amend, terminate or waive any material right related to the Business, except in the ordinary course of business, consistent with past practices;
(u) neither commence nor settle any material Claims other than: (i) Claims for the routine collection of bills due and owing; (ii) the settlement of any Claims set forth in section 4.18 of the Encad Disclosure Letter which are settled for less than $50,000 individually or $250,000 in the aggregate; or (iii) in the case of commencement of Claims, such cases where Encad in good faith determines that failure to commence a Claim would result in the material impairment of a valuable aspect of the Business, provided that Encad consults with Kodak prior to the commencement of the Claim and keeps Kodak advised of the status and details thereof;
(v) promptly notify Kodak of all proposed material additions to and developments or improvements of the Products relating to design, functionality or other material aspects;
(w) not take any other action outside the ordinary course of business that could reasonable be expected to have, individually or in the aggregate, an Encad Material Adverse Effect;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) not make, enter intoorally or in writing, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit commitment to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(vy) continue to maintain immediately notify Kodak upon the existing business relationships with the suppliers and customers occurrence or anticipated occurrence of any of the Companies other than relationships not economically beneficial to the Companiesmatters contemplated by this Section 6.1.
Appears in 1 contract
Sources: Merger Agreement (Encad Inc)
Ordinary Course. Except as explicitly permitted by this Agreement or as otherwise approved by Relief in writing in advance, during the Pre-Closing Period:
(a) From NRx will: (i) operate its business with respect to the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business Product in the ordinary course and consistent with past practice. Without practices; (ii) comply with all applicable Laws applicable to its business; and (iii) use Commercially Reasonable Efforts to maintain good relations with the prior written consent of Buyer or except as required or expressly permitted pursuant counterparties to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall Transferred Contracts;
(b) NRx will not permit any of the Companies to, with respect to the Business:
(i) make sell, license, transfer, assign, license, discard, destroy, dispose of or create any material change Liens (other than Permitted Liens) in the conduct of the Business as conducted as of the Execution Date Transferred Assets, or enter into any material transactionagreement or undertake any new obligation with any Person with respect to the Transferred Assets; or (i) terminate or amend any of the Transferred Contracts other than as required by the terms of any such Transferred Contracts;
(iic) make NRx will use Commercially Reasonable Efforts to defend any salechallenge or opposition relating to the Transferred Patents, assignmentwhich challenge, transferor opposition shall have, abandonment or other conveyance of the Assets or any part thereofshall be reasonably likely to have, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practicea Material Adverse Effect;
(iiid) subject any of the Assets, or any part promptly after obtaining knowledge thereof, to any Lien NRx shall notify Relief of (i) the occurrence or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability non-occurrence of any fact or event which causes or would be reasonably likely to cause (A) any representation or warranty of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase NRx contained in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, this Agreement to be in the ordinary course of business consistent with past practice;
(v) make untrue or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend inaccurate in any material respect or terminate (B) any Material Contract; or
(xiii) agreecovenant, resolve condition or commit agreement of NRx in this Agreement not to do be complied with or satisfied in any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shallmaterial respect, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) fileany failure of NRx to comply with or satisfy any covenant, when due condition or requiredagreement to be complied with or satisfied by it hereunder; provided that no such notification shall affect the representations or warranties of NRx or Relief or Relief's right to rely thereon, federal, state, foreign and or the conditions to the obligations of Relief hereunder. NRx shall give prompt notice in writing to Relief of any written notice or other Tax returns and other reports communication from any Person alleging that the Consent of such Person is or may be required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against obtained by NRx in connection with the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practiceTransactions; and
(ve) NRx and its Affiliates will continue to maintain the existing business relationships enforce all agreements protecting Know How and Confidential Information consistent with the suppliers and customers of the Companies other than relationships not economically beneficial past practices to the Companiesextent such agreements are not otherwise transferred to Relief pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (NRX Pharmaceuticals, Inc.)
Ordinary Course. (a) From The Company covenants and agrees as to itself and its Subsidiaries that, from the date hereof and of this Agreement until the earlier of the Closing Date or the Effective Time and termination of this Agreement, except as specifically permitted by any other provision of this Agreement pursuant to Article X, Seller shall, and shall cause each (or as set forth in Section 5.1 of the Companies toCompany Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or any of its Subsidiaries or except with Parent’s prior written approval (not to be unreasonably withheld, conduct conditioned or delayed), the Business business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with the Company’s past practicepractice and, to the extent consistent therewith, the Company and its Subsidiaries shall use their reasonable best efforts to (i) preserve their assets, (ii) keep available the services of current officers, key employees and consultants of the Company and each of its Subsidiaries, (iii) preserve the Company’s business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, clinical trial investigators or managers of its clinical trials and (iv) comply in all material respects with all applicable Laws. Without limiting the prior written consent generality of Buyer or the foregoing, and as an extension thereof, except as specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter) or required by applicable Law or expressly permitted pursuant the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, or the terms hereofof any Contract binding upon the Company or any of its Subsidiaries, between the date hereof and compliance with which shall not cause the Closing DateCompany to be in material non-compliance with this Section 5.1, Seller the Company shall not, and shall not permit any of the Companies its Subsidiaries to, with respect from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the Business:following without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):
(ia) make any material change in amend or propose to amend the conduct certificate of incorporation or bylaws or other comparable governing instruments of the Business as conducted Company or any of its Significant Subsidiaries;
(b) issue, sell, pledge, dispose of, grant, transfer or encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock of any class or any Equity Interest, voting debt of the Company or any of its Subsidiaries, other than the issuance of shares upon the exercise of Company Convertible Preferred Stock, outstanding as of the Execution Date date hereof, in accordance with its terms, or enter into any material transactionthe exercise of Options or the settlement of DSUs or RSUs or MIP, outstanding as of the date hereof, in each case in accordance with the terms of the applicable Company Stock Plan and related award agreements;
(iic) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions than pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out cash management or obsolete equipment for fair or reasonable value investment portfolio activities in the ordinary course of business, acquire (including by merger, consolidation, or acquisition of stock or assets or Intellectual Property or any other business consistent combination) any ownership interest in any corporation, partnership, other business organization or any division thereof or any assets or interest in any assets from any other Person for consideration valued in excess of $50 million individually or $200 million in the aggregate (with past practicethe valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States));
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(ivd) enter into any new (strategic licensing, joint venture, collaboration, alliance, co-promotion or amend any existing) employment, severance similar agreement for consideration valued in excess of $50 million individually or consulting agreement, grant any general increase $200 million in the compensation aggregate for all such contracts (with the valuation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except contingent consideration being determined in accordance with prethe valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States)), provided, that no such agreement would (i) constitute a Company Material Contract, (ii) limit or restrict the Company or its Subsidiaries or the Parent or any of its Affiliates (including the Surviving Corporation) or any successor thereto, in each case, after the Effective Time, from engaging or competing in, or require any of them to work exclusively with the party to such agreement in, any material line of business or in any material geographic area or, in the case of the pharmaceutical or animal health business, in the research, development, manufacture and commercialization of any antibody or therapeutic agent directed at a specific antigen or other target or product or in any therapeutic area, class of drugs or mechanism of action or modality, other than any limitation or restriction which the Company shall have the right to terminate upon a change of control at no cost and with no such continuing material restrictions or obligations to the Company or Parent or any of their respective Subsidiaries; or (iii) be reasonably expected to interfere with the parties’ ability to consummate the Merger;
(e) (i) purchase financial instruments that at the time of purchase qualify as Level III assets (as defined in FASB 157); (ii) change in a material manner the average duration of the Company’s investment portfolio or the average credit quality of such portfolio, except for changes that would reduce investment risk in such portfolio; (iii) materially change investment guidelines with respect to the Company’s investment portfolio except for changes that would reduce investment risk of the Company’s investment portfolio; (iv) hypothecate, repo, encumber or otherwise pledge assets in the Company’s investment portfolio; or (v) invest new surplus cash from operations in securities other than short-term liquid securities permitted by Parent’s investment guidelines (which shall be implemented by the Company with respect to such new surplus cash as soon as practicable after the date hereof);
(f) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(g) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than any such transaction between or among direct or indirect wholly-owned Subsidiaries of the Company that would not result in material adverse tax consequences or material loss of tax benefits or loss of any material asset (including Intellectual Property);
(h) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any of its Subsidiaries, except (i) pursuant to existing contractual provisions Contracts or commitments, (ii) for the sale of goods and services in the ordinary course of business consistent with past practice, (iii) transactions involving property or hire assets of the Company or any new employees of its Subsidiaries having a value no greater than $120 million in the aggregate for all such transfers (with the valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States)), (iv) in connection with any waiver, release, assignment, settlement, compromise of litigation otherwise permitted under this Section 5.1, or (v) in connection with cash management or investment portfolio activities in the ordinary course of business;
(i) split, combine, reclassify, subdivide or amend the terms of its outstanding shares of capital stock or any other securities of the Company or enter into any agreement with respect to voting of any of its capital stock or any securities convertible into or exchangeable for such shares;
(j) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, in respect of the Business; provided capital stock of the Company or any of its Subsidiaries, except (i) the declaration and payment of regular quarterly cash dividends not in excess of $0.30 per share of Company Common Stock, (ii) the declaration and payment of regular quarterly cash dividends not in excess of $0.50 per share of Company Convertible Preferred Stock, in each case, with usual record and payment dates for such dividends in accordance with past dividend practice and (iii) between or among direct or indirect wholly-owned Subsidiaries of the Company;
(k) purchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase, redeem or otherwise acquire any shares of its capital stock, any securities convertible or exchangeable or exercisable for any shares of capital stock or any other securities, including the Convertible Debentures and Company Convertible Preferred Stock, except for purchases, redemptions or other acquisitions of capital stock or other securities (i) required by the terms of the Company Stock Plans or the Convertible Debenture Indenture, (ii) in order to pay Taxes or satisfy withholding obligations in respect of such taxes in connection with the exercise of Company Stock Options or vesting of RSUs or DSUs or the lapse of restrictions in respect of any other Equity Interests in the Company, in each case pursuant to the terms of the Company Stock Plans, (iii) required by the terms of any plans, arrangements or agreements existing on the date hereof and disclosed in Section 3.11(a) of the Company Disclosure Letter between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries, or (iv) prepayment, repurchase or redemption of all or any portion of the Convertible Debentures for an amount less than or equal to par, plus any accrued and unpaid interest incurred up to the date on which such Convertible Debentures are prepaid, repurchased or redeemed;
(l) incur any indebtedness for borrowed money or issue any debt securities or warrants or other rights to acquire debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, as an accommodation or otherwise, the obligations of any other Person for borrowed money, in each case other than for borrowing under the Company’s existing working capital facilities and existing letter of credit facilities in the ordinary course;
(m) make any loans, capital contributions to, or investments in, any Person in amounts in excess of $50 million in the aggregate, other than (i) cash management or investment portfolio activities in the ordinary course of business and consistently with the Company’s obligations under Section 5.1(e) or (ii) in connection with a transaction permitted under Section 5.1(c) or (d);
(n) make or agree to make any capital expenditures in excess of $1.2 billion in the aggregate for all such capital expenditures (it being understood that any excess over such amount attributable solely to foreign exchange fluctuation shall not be deemed to violate this clause), or commit to any new capital projects in excess of $50 million individually and $100 million in the hiring aggregate for all such capital expenditures that are not contemplated by the Company’s 2009 operating plan;
(o) terminate, cancel, renew, or request or agree to any material amendment or material modification to, material change in, or material waiver under, any Company Material Contract, or enter into or materially amend any Contract that, if existing on the date hereof, would be a Company Material Contract (in each case, excluding the Company Material Contracts identified in Section 3.10(a)(ii) (except for any amendment that would expand the limitations or restrictions referenced therein));
(p) (i) increase the number of employees for of the Company and its Subsidiaries (“Company Employees”), based on the number of Company Employees employed as of the date hereof, other than with respect to (A) employees hired pursuant to offers of employment outstanding on the date hereof or to replace currently authorized key positions listed that are or may become vacant or (B) as reasonably determined by the Company in good faith, employees (up to a maximum of 500 people) based on Schedule 6.1(a)(ivessential business need, or (ii) hereto enter into an employment agreement or relationship with any Person who earns an annual rate of base salary of more than or equal to $215,000 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof or with respect to newly hired employees filling positions that are reasonably and in good faith deemed by the Company to be essential, but in no event, in the aggregate, to exceed 50 people);
(q) enter into, modify, amend or terminate any Contract or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (i) impair the ability of the Company to perform its obligations under this Agreement in any material respect or (ii) prevent or materially delay or impair the consummation of the Merger and the other transactions contemplated by this Agreement;
(r) except as required pursuant to any Company Benefit Plans, Foreign Benefit Plans, Collective Bargaining Agreements, the terms of this Agreement or any comparable positions without limitation shall be deemedapplicable Law: (i) grant or provide, or adopt a plan or enter into any agreement or agreements intended to be grant or provide, any retention, change in control, severance or termination payments or benefits to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, except for increases in base salary, in the ordinary course of business consistent with past practice;
practice for promoted employees who are not officers and whose new position fills a vacancy (other than a vacancy created as a result of Project Impact), that do not exceed six percent (6%), on average, of the base salary increases of all those receiving such salary increases in the United States and Puerto Rico (and consistent with local promotional practices and applicable Law in jurisdictions outside the United States or Puerto Rico), (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, (v) make change any actuarial or commit other assumptions used to make calculate funding obligations with respect to any capital expenditure Company Benefit Plan or to change the manner in excess of five thousand dollars ($5,000);
which contributions to such plans are made or the basis on which such contributions are determined, or (vi) payissue or forgive any loans to directors, lendofficers, or advance any amount toemployees, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller contractors or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, their respective Affiliates except for any such change required by reason of a concurrent change in GAAP, or write down issuance that would not violate the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and is consistent with past practice;
practice and policy; (xs) except as set forth on Schedule 6.1(a)(x), make pre-pay any long-term indebtedness for borrowed money or change the terms or extend the maturity thereof (including providing cash cover under any Tax election, change any annual Tax accounting period, adopt or change any method letter of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.credit ot
Appears in 1 contract
Sources: Merger Agreement (Wyeth)
Ordinary Course. Buyer shall, and shall cause each of the other Renovaro Group members to, carry on its business in the ordinary course consistent with past practice, will continue to observe its obligations to comply with the requirements of all applicable Laws and regulations, and will use commercially reasonable efforts to (ai) From preserve intact its present business organization and its assets, (ii) keep available the date hereof services of its officers, consultants, and until employees (other than termination of such services for cause), (iii) maintain and preserve the goodwill and relationships with manufacturers, customers, suppliers, contractors, distributors, and others having business relationships with it and (iv) maintain its books, records and financials in accordance with US GAAP. Buyer will promptly notify Sellers and Company of any event or occurrence not in the ordinary course of business of any Renovaro Group member that would result, or could reasonably be expected to result, individually or in the aggregate, in a Buyer Material Adverse Effect. Without limiting the above, prior to the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer X or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller Buyer shall not, and shall cause its subsidiaries to not permit (except as (i) expressly contemplated by this Agreement, (ii) as required by applicable Law, or (iii) as otherwise consented to in advance in writing by Company and Sellers, which consent shall not be unreasonably delayed, conditioned or withheld):
(a) except as required under the terms of any agreement existing as of the date of this Agreement as disclosed in the Buyer Disclosure Schedule, (i) increase the compensation or benefits of any of the Companies tocurrent or former directors, with respect to the Business:
officers, or employees of any Renovaro Group member (i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
collectively, “Buyer Employees”), (ii) make establish or amend any saleBenefit Plan, assignment(iii) terminate the employment of any Buyer Employee (other than due to terminations for cause) or (iv) grant any severance or termination pay to any Buyer Employee, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth than in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the Buyer’s ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viiib) take assign, transfer, dispose of, or license ownership of Buyer IP Rights or any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth thereinassets;
(ixc) make abandon or permit to lapse any Buyer IP Rights;
(d) disclose any Buyer’s Trade Secrets to any third party, other than pursuant to confidentiality agreements;
(e) declare, set aside, or pay any distribution with respect to any Buyer Common Stock, or repurchase, redeem, or acquire any outstanding Buyer Common Stock or other ownership interests in Buyer, or otherwise change the capitalization of Buyer in any method manner from the way it existed on the date of accounting this Agreement;
(f) amend the Organizational Documents of Buyer;
(g) incur, create, assume, prepay or accounting principle, method, estimate or practice, except otherwise become liable for any such change required by reason of Indebtedness (directly, contingently or otherwise), make a concurrent change loan or advance to or investment in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable third party (other than advancement of expenses to employees in the ordinary course of business consistent with past practicebusiness), or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
(xh) except as set forth on Schedule 6.1(a)(x)commence a lawsuit, or settle, compromise, or otherwise terminate any litigation, claim, investigation, or other settlement negotiation;
(i) make or change any Tax election, change payments to any third parties in excess of $100,000 outside of the ordinary course of business;
(j) extend an offer of employment to a candidate whose annual Tax accounting period, adopt or change any method compensation shall be in excess of Tax accounting, file any amended Tax Return, $300,000;
(k) enter into any closing agreement relating to Taxesjoint venture, settle any Tax claim or assessmentpartnership, surrender any right to claim a Tax refundlimited liability company, or consent to operating agreement with any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the CompaniesPerson;
(xil) settleenter into any Buyer Material Contract or breach, release modify, amend, or forgive terminate any claim Buyer Material Contracts (including insurance policies covering Buyer’s properties or litigation assets), or waive waive, release, or assign any rightrights or claims under any Buyer Material Contracts, except as expressly required or permitted by this Agreement;
(xiim) makevoluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $300,000 individually or $600,000 in the aggregate other than pursuant to the terms of a Company Material Contract;
(n) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization;
(o) acquire or dispose of capital stock of any third party or merge or consolidate with any third party;
(p) establish any subsidiary or enter intointo any new line of business;
(q) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, modifyoperations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(r) sell, amend lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(s) knowingly take any action that would or is reasonably likely to (i) make any representation or warranty of Buyer contained in this Agreement inaccurate, (ii) result in any material respect of the conditions in Article VII not being satisfied, or terminate any Material Contract(iii) impair the ability of Buyer to consummate the Transactions in accordance with the terms of this Agreement; or
(xiiit) agreeauthorize, resolve commit, or commit agree to do take any of the foregoingforegoing actions.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Renovaro Biosciences Inc.)
Ordinary Course. (a) From During the period from the date hereof of this Agreement and continuing until the earlier of the Closing Date or the termination of this Agreement pursuant to Article Xits terms or the Effective Time, Seller the Company and each of its Subsidiaries shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as otherwise expressly required by this Agreement or expressly permitted pursuant by applicable Legal Requirements or to the terms hereofextent that Parent shall otherwise consent in writing, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:
(i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of its business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and substantially consistent with past practice and in compliance, in all material respects, with all applicable Legal Requirements, (ii) pay its Liabilities and Taxes when due, subject to good faith disputes with respect to any such Liabilities or Taxes, and pay or perform its other material obligations as paid or performed in the ordinary course of business, (iii) use commercially reasonable efforts to assure that each of its Contracts entered into after the date of this Agreement will not require the procurement of any consent, waiver or novation or provide for any material change in the obligations of any party hereto in connection with, or terminate as a result of the consummation of, the Merger, (iv) maintain each of its Leased Real Properties in accordance with existing practice; and
the terms of the applicable lease in all material respects, (v) continue notify and give Parent the opportunity to maintain participate in (but not conduct) the existing defense or settlement of any litigation to which the Company is a party, (vi) use commercially reasonable efforts consistent with past practices to (A) preserve intact its present business organization, (B) keep available the services of its present officers and other key Employees, (C) preserve its beneficial relationships with customers, vendors, suppliers, distributors, consultants, licensors, licensees and others with which it has business dealings, and (D) maintain in effect all of its Governmental Authorizations, (vii) shall pay in cash to the suppliers and customers holders of shares of Company Preferred Stock the dividends that become payable on such shares prior to the Closing Date pursuant to Section 2(b) of the Companies other Certificates of Designations, and such payments shall be made on the terms, in the amounts (and no more than relationships not economically beneficial the amounts) and on the dates required by the Certificates of Designations (and for the avoidance of doubt, all dividends accrued at or prior to the CompaniesLast Series A Dividend Payment Date or the Last Series B Dividend Payment Date, as applicable, shall be paid at or prior to such date, respectively), and (viii) consult with Parent, and keep Parent reasonably apprised, in good faith in conducting the defense of any legal proceedings made or brought by any of the current or former stockholders of the Company (on their own or on behalf of the Company) against the Company or its Board of Directors which arise out of or in connection with the Merger or any of the transactions contemplated by this Agreement), and not settle or compromise any such legal proceeding without the prior written consent of Parent, in its sole discretion, (A) to the extent that the Company, Parent or any of their respective subsidiaries is required to pay any amount in settlement or compromise, or (B) if such settlement or compromise would impose any obligation on Parent or any of its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Answers CORP)
Ordinary Course. (a) From The Company covenants and agrees as to itself and its Subsidiaries that, from the date hereof and of this Agreement until the earlier of the Closing Date or the Effective Time and termination of this Agreement, except as specifically permitted by any other provision of this Agreement pursuant to Article X, Seller shall, and shall cause each (or as set forth in Section 5.1 of the Companies toCompany Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or any of its Subsidiaries or except with Parent's prior written approval (not to be unreasonably withheld, conduct conditioned or delayed), the Business business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with the Company's past practicepractice and, to the extent consistent therewith, the Company and its Subsidiaries shall use their reasonable best efforts to (i) preserve their assets, (ii) keep available the services of current officers, key employees and consultants of the Company and each of its Subsidiaries, (iii) preserve the Company's business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, clinical trial investigators or managers of its clinical trials and (iv) comply in all material respects with all applicable Laws. Without limiting the prior written consent generality of Buyer or the foregoing, and as an extension thereof, except as specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter) or required by applicable Law or expressly permitted pursuant the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, or the terms hereofof any Contract binding upon the Company or any of its Subsidiaries, between the date hereof and compliance with which shall not cause the Closing DateCompany to be in material non-compliance with this Section 5.1, Seller the Company shall not, and shall not permit any of the Companies its Subsidiaries to, with respect from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the Business:following without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):
(ia) make any material change in amend or propose to amend the conduct certificate of incorporation or bylaws or other comparable governing instruments of the Business as conducted Company or any of its Significant Subsidiaries;
(b) issue, sell, pledge, dispose of, grant, transfer or encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock of any class or any Equity Interest, voting debt of the Company or any of its Subsidiaries, other than the issuance of shares upon the exercise of Company Convertible Preferred Stock, outstanding as of the Execution Date date hereof, in accordance with its terms, or enter into any material transactionthe exercise of Options or the settlement of DSUs or RSUs or MIP, outstanding as of the date hereof, in each case in accordance with the terms of the applicable Company Stock Plan and related award agreements;
(iic) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions than pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out cash management or obsolete equipment for fair or reasonable value investment portfolio activities in the ordinary course of business consistent with past practice;
business, acquire (iii) subject any of the Assetsincluding by merger, consolidation, or acquisition of stock or assets or Intellectual Property or any part thereofother business combination) any ownership interest in any corporation, to any Lien or suffer such to existpartnership, other than such Liens as may arise business organization or any division thereof or any assets or interest in any assets from any other Person for consideration valued in excess of $50 million individually or $200 million in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially aggregate (with the use, operation, enjoyment or marketability valuation of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except contingent consideration being determined in accordance with pre-existing contractual provisions or the valuation methodology used by the Company in connection with determining the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit need to make any capital expenditure in excess of five thousand dollars a notification under the HSR Act ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail without regard to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties whether payments are being made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to assets within or outside the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practiceUnited States));
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Merger Agreement (Pfizer Inc)
Ordinary Course. Except for the Spin-Off, each of Metermaster and its Subsidiaries will: (a) From carry on its business in substantially the date hereof same manner as has heretofore been conducted and until not make any change in its personnel, operations, finance, accounting practices or policies or assets; (b) maintain its assets and all parts thereof in good working order and condition, ordinary wear and tear excepted; (c) perform all of its obligations under its Contracts (except that Metermaster may continue to pay its accounts payable late or otherwise outside of their payment terms to the earlier of the Closing Date or the termination of this Agreement pursuant extent that Metermaster's cash flow is insufficient to Article X, Seller shallallow timely payment), and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:
(i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, Contract except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business, nor cancel, modify adversely, assign, encumber or in any way discharge or terminate (other than by performance) any Contract; (d) not allow to occur or exist any event of default under any Contract to which it is a party, except for defaults under the loan documents evidencing Metermaster's financing arrangements with Congress Financial Corporation (Southern), and defaults under the payment terms of Contracts; (e) take all reasonable actions necessary and appropriate to obtain appropriate releases, consents, novations, estoppels and other instruments as Transmation may reasonably request; (f) neither cancel, nor allow to lapse nor make any change in the coverage of any insurance policy applicable to Metermaster, any of its Subsidiaries or any of their assets; (g) pay all Taxes as they become due, confer with Transmation prior to the filing of any Tax return or protest by it or any of its Subsidiaries and not take any position with respect to Taxes to which Transmation reasonably objects; (h) use its best efforts to maintain and preserve its business organization intact, retain employees (except for employment terminations in accordance with past practices), maintain business relationships with suppliers, customers and others consistent with past practice;
the terms of such relationships, and take such other actions as are necessary to cause the smooth, efficient and successful transition of such business operations and employee and other relations at the Effective Time; (iiii) subject any neither make offers of the Assets, or any part thereof, employment to any Lien Persons for periods subsequent to the Effective Time (except for offers made in the ordinary course for employment on an at will basis), nor enter into any Employee Plan with respect thereto, nor incur or suffer such agree to exist, other than such Liens as may arise incur any liability not in the ordinary course of business consistent with past practice by operation of Law business, except for those offers, Employee Plans and that do not liabilities currently under negotiation and will not, individually or identified in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
SCHEDULE 6.1; (ivj) enter into any new (or neither adopt nor amend any existingEmployee Plan; (k) employmentnot increase the compensation, severance or consulting agreementin any form, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any director, officer, employee, consultant or agent, except in accordance with pre-existing contractual provisions or for employees' compensation increases in the ordinary course of business consistent in accordance with past practiceexisting personnel policies, or hire any new employees bonus compensation earned in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto conjunction with valid incentive agreements or any comparable positions without limitation shall be deemed, otherwise disclosed to be Transmation in the ordinary course of business consistent with past practice;
Due Diligence Information; (vl) make except as set forth in SCHEDULE 6.1, not incur any indebtedness or commit to make guarantee any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies indebtedness except in the ordinary course of business consistent with past practices;
, nor issue any debt securities; (viiim) take not create or assume any Encumbrance upon any of its assets, irrespective of when acquired, other than Permitted Encumbrances; (n) neither acquire nor agree to acquire by merging or consolidating with, or by purchasing any equity interest in or any portion of the assets of, or by any other action that would cause manner, any of the representations and warranties made by Seller in Person; (o) neither make nor authorize any of the Transaction Documents not to be and remain true and correct purchase order except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) business, nor any capital expenditure except as set forth on Schedule 6.1(a)(xidentified in SCHEDULE 6.1; (p) neither sell, lease, assign nor otherwise transfer or dispose of any assets (other than supplies), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies except in the ordinary course of business; (q) neither pay, prepay nor discharge any liability or obligation except as required pursuant to the terms thereof; (r) neither lose, surrender nor have revoked or limited any license, permit or other right granted by any Governmental Entity to operate Metermaster's business consistent or any of its assets; (s) neither write off any Accounts Receivable or Inventories, nor increase or decrease the amount of reserves against any Accounts Receivable or Inventories, except for actions required by GAAP with past practice;
respect to the Current Financial Statements; (ivt) keep and maintain the books neither alter nor revise any of accountits accounting principles, records and files of the Companies procedures, methods or practices; (u) neither amend, terminate nor waive any right, except in the ordinary course of business business; and in accordance with existing practice; and
(v) continue to maintain not take any other action outside the existing ordinary course of business relationships with that would adversely affect the suppliers and customers business operations of Metermaster or any of its Subsidiaries, or of the Companies other than relationships Surviving Corporation immediately after the Effective Time. Notwithstanding the foregoing, Metermaster makes no representation or warranty that its business operations and prospects will not economically beneficial to deteriorate between the Companiesdate of this Agreement and the Closing Date.
Appears in 1 contract
Ordinary Course. From the date of this Agreement until the earlier of the Closing Date and the date on which this Agreement is terminated pursuant to Article X, unless (i) Purchaser otherwise consents in writing (such consent not to be unreasonably withheld, delayed or conditioned except as otherwise specified in Section 6.1(a)), (ii) expressly permitted by this Agreement, (iii) disclosed in Section 6.1(a) of the Seller Disclosure Letter, or (iv) required by applicable Law or Governmental Body, Seller shall (i) cause each of the Companies to carry on the Businesses in the Ordinary Course and in accordance with their Organizational Documents and use commercially reasonable efforts to preserve intact their present business organization, maintain their rights and preserve in all material respects their relationships with employees, officers, customers, suppliers and others having material business dealings with them; and (ii) cause each Company to maintain in all material respects insurance policies and Governmental Licenses and Rights with respect to the Companies and to maintain all material assets and properties of the Companies in customary repair, order and condition consistent with the Companies’ maintenance practices in the Ordinary Course; provided, however, that no action taken by any of the Companies with respect to matters specifically addressed by clauses (a) From through (s) of this Section 6.1 taken in compliance with this Section 6.1 will be deemed a breach of this sentence. Without limiting the generality of the foregoing and MGM Member’s rights under the JV Operating Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed (except as otherwise specified in Section 6.1(a))), from the date hereof and of this Agreement until the earlier of the Closing Date or the termination of date on which this Agreement is terminated pursuant to Article X, except (w) as expressly permitted by this Agreement, (x) as provided in the Company Budget, (y) as disclosed in Section 6.1(b) of the Seller shallDisclosure Letter, or (z) as required by applicable Law or Governmental Body, Seller shall not, and shall cause each of the Companies to, conduct not to (regardless of whether such action would have otherwise been permitted under the Business in JV Operating Agreement without MGM Member’s consent):
(a) take any action that would require the ordinary course consistent with past practice. Without the prior written consent of Buyer MGM Member under any Organizational Documents of any Company, including the JV Operating Agreement (provided that Purchaser may withhold, condition or except as required or expressly permitted pursuant to the terms hereof, between the date hereof delay its consent for any such action in its sole and the Closing Date, Seller shall notabsolute discretion, and this consent standard shall not permit any apply to such action regardless of the Companies to, with respect to the Business:
whether such action is also addressed by clause (ib) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
through (iis) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000below);
(vib) payamend any Organizational Documents of any Company; issue, lend, or advance any amount to, or sell, transfer or lease any properties or assets toauthorize the issuance of, or enter into any agreement to issue any Capital Stock of any Company; or arrangement withundertake any recapitalization, Seller merger, consolidation, reorganization, liquidation, dissolution or winding up of any of Seller’s AffiliatesCompany;
(viic) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viiii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing collective bargaining agreement relating to Taxes, settle or modify any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies Company Collective Bargaining Agreement other than relationships not economically beneficial to the Companies.Ordinary Course immaterial modifications;
Appears in 1 contract
Ordinary Course. (a) From During the period from the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant and continuing until the Closing, except as expressly provided in this Agreement, including the Schedules hereto, or to Article Xthe extent that Purchaser shall otherwise consent, Seller WEC shall, and shall cause each of the Companies to, conduct other Sellers and the Sold Subsidiaries to carry on the Business in the ordinary course Ordinary Course of Business and use all reasonable efforts consistent with past practicepractices to keep available the services of the Business's present officers and employees and preserve the Business's relationships with customers, suppliers and others having business dealings with the Business. Without the prior written consent of Buyer or In addition, except as required contemplated by Schedule 5.1 or expressly permitted pursuant to the terms hereofas otherwise provided by this Agreement, between the date hereof and the Closing Date, Seller WEC shall not, and shall not permit any other Seller or Sold Subsidiary to, do any of the Companies to, following with respect to the Business:Business without the consent of Purchaser (which consent shall not be, in the case of clause (xi) below, unreasonably withheld or delayed):
(i) make amend the certificates of incorporation or by-laws (or comparable organizational documents) of any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transactionSold Subsidiary;
(ii) make adopt or amend any saleBenefit Plan or Labor Contract so as to materially increase the costs thereunder, assignment, transfer, abandonment except as required by Law or pursuant to the terms of any existing Labor Contract or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practiceContract;
(iii) subject grant to any executive officer of any Sold Subsidiary any increase in compensation, benefits or loans or severance benefits, except in the Ordinary Course of Business or as may be required under existing contracts or agreements and except for any increases or loans the liability for which a Seller shall be solely obligated;
(iv) incur or assume any liabilities, obligations, or indebtedness for borrowed money which would constitute an Assumed Liability or guarantee any such liabilities, obligations or indebtedness, in each case other than in the Ordinary Course of Business;
(v) acquire by merging or consolidating with, or by purchasing a material portion of the Assetsassets of, or by any part other manner, any business or any corporation, partnership, joint stock company, limited liability company, association or other business organization or division thereof, to ;
(vi) acquire any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will notassets which are material, individually or in the aggregate, have to the Business, taken as a Material Adverse Effect or interfere materially with whole, except in the use, operation, enjoyment or marketability Ordinary Course of any of the AssetsBusiness;
(ivvii) sell, lease or mortgage, pledge or otherwise dispose of, or grant preferential rights to, any of its assets which are material, individually or in the aggregate, to the Business taken as a whole, except for the sale of Inventory in the Ordinary Course of Business and except for the sale or factoring of Accounts Receivable;
(viii) enter into any new (or amend lease of real property for an annual rent in excess of $150,000 except, following good faith consultation with Purchaser, any existing) employment, severance or consulting agreement, grant any general increase renewals of existing leases in the compensation Ordinary Course of officers Business;
(ix) enter into any joint venture, partnership or employees other similar arrangement;
(including x) enter into, amend or terminate any such employment agreement;
(xi) knowingly waive any right of material value to the Business or settle or compromise any claim in excess of $5,000,000;
(xii) make any wage or salary increase pursuant to any Employee Benefit Plan), grant any increase in the or other compensation payable or to become payable or bonus, or increase in any other direct or indirect compensation, for or to any employeeof its officers, except in accordance with pre-existing contractual provisions employees, consultants, agents or other representatives employed in the ordinary course of business consistent with past practiceBusiness, or hire any new employees in respect of the Business; provided that the hiring of employees accrual for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, commitment or agreement to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure pay the same, in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable each case other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness or as may be required under existing contracts;
(xxiii) except as set forth on described in Schedule 6.1(a)(x), make 4.1(j)(iii) or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Returnas otherwise contemplated by this Agreement, enter into any closing agreement relating to Taxestransactions with any of its Affiliates, settle any Tax claim officers, directors, employees, consultants, agents or assessment, surrender any right to claim a Tax refundother representatives (other than employment arrangements made in the Ordinary Course of Business), or consent to any extension Affiliate, of any officer, director, consultant, employee, agent or waiver of the limitations period applicable to any Tax claim or assessmentother representative, in each case relating to the Companiesextent the obligations arising from any such transaction would be an Assumed Liability;
(xixiv) settlemake any payment or commitment which would constitute an Assumed Liability to pay any severance or termination payment to any Person or any of its officers, release directors, employees, consultants, agents or forgive any claim or litigation or waive any rightother representatives employed in the Business, other than payments pursuant to contractual obligations in effect on the date of this Agreement;
(xiixv) make, enter into, modifyexcept in the Ordinary Course of Business, amend in any material respect or terminate enter into any Material ContractContract or other agreement of a type required to be disclosed pursuant to Section 4.1(j)(v), (vii), (viii), (xi), (xiii), (xiv) and (xv); or
(xiiixvi) agree, resolve whether in writing or commit otherwise, to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Asset Purchase Agreement (CBS Corp)
Ordinary Course. Each of River Oaks and its Subsidiaries will: (a) From carry on its business in substantially the date hereof same manner as has heretofore been conducted and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:
(i) make any material change in the conduct personnel, operations, finance, accounting practices or policies or assets of the Business as conducted as Facilities; (b) maintain the Facilities and all parts thereof in good working order and condition, ordinary wear and tear excepted; (c) perform all of its obligations under the Execution Date Material Agreements and not enter into, amend or enter into terminate any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, Material Agreement except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business; (d) take all reasonable actions necessary and appropriate to obtain appropriate releases, consents, estoppels and other instruments as HMA may reasonably request; (e) neither cancel, nor allow to lapse nor make any material change in the coverage of any insurance policy applicable to River Oaks, any of its Subsidiaries or any Facility; (f) pay all Taxes as they become due, confer with HMA prior to the filing of any tax return or protest by it or any of its Subsidiaries and not take any position with respect to Taxes to which HMA reasonably objects; (g) use its best efforts to maintain and preserve its business organization intact, retain employees at the Facilities (except for employment terminations in accordance with past practices), maintain relationships with physicians, consistent with past practice;
(iii) subject any the bylaws, rules and regulations of the AssetsMedical Staff, or any part thereofmaintain relationships with suppliers, customers and others having business relations with the Facilities consistent with the terms of such relationships, and take such other actions as are necessary to cause the smooth, efficient and successful transition of such business operations and employee and other relations at the Effective Time; (h) neither make offers of employment to any Lien Persons for periods subsequent to the Effective Time (except for offers made in the ordinary course for employment on an at will basis), nor enter into any Employee Plan with respect thereto, nor incur or suffer such agree to exist, other than such Liens as may arise incur any liability not in the ordinary course of business consistent with past practice by operation of Law business, except for those offers, Employee Plans and that do not liabilities currently under negotiation and will not, individually or identified in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of Schedule 6.1; (i) ------------ neither adopt nor amend in any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to material respect any Employee Benefit Plan); (j) not increase the compensation, grant in any increase in the compensation form, payable or to become payable to any director, officer, employee, consultant or agent, except in accordance with pre-existing contractual provisions or for employees' compensation increases in the ordinary course of business consistent in accordance with past practiceexisting personnel policies; (k) except as set forth in Schedule 6.1, not incur ------------ any indebtedness or hire guarantee any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies indebtedness except in the ordinary course of business consistent with past practices;
, nor issue any debt securities; (viiil) take not create or assume any mortgage, pledge or other lien or encumbrance upon any of its assets, irrespective of when acquired, other than Permitted Encumbrances; (m) neither acquire nor agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other action that would cause manner, any Person; (n) neither make nor authorize any purchase order or capital expenditure in excess of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct $10,000 except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) or except as set forth on identified in Schedule 6.1(a)(x6.1; (o) neither ------------ sell, lease, assign nor otherwise transfer or dispose of any assets (other than supplies), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies except in the ordinary course of business consistent with past practice;
business; (ivp) keep and maintain not amend, terminate or waive any right related to the books of accountFacilities or their businesses, records and files of the Companies except in the ordinary course of business; and (q) not take any other action outside the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain that would materially adversely affect the existing business relationships with the suppliers and customers operations of River Oaks, any of its Subsidiaries or any of the Companies other than relationships not economically beneficial to the CompaniesFacilities.
Appears in 1 contract
Sources: Merger Agreement (Health Management Associates Inc)
Ordinary Course. (a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller FirstEnergy shall, and shall cause each of the Companies its Subsidiaries to, conduct the Business carry on its business in the ordinary course consistent and use all commercially reasonable efforts to preserve intact their goodwill, preserve the goodwill and relationships with past practice. Without customers, suppliers and others having business dealings with them and, subject to prudent management of workforce needs and ongoing programs currently in force, keep available the prior written consent services of Buyer or except as required or expressly permitted pursuant their present officers and employees, provided, however, that, to the terms hereofextent permitted by Section 6.15, between FirstEnergy may enter into a new line of business, make any change in the lines of business it engages in as of the date hereof or dispose of or acquire assets, by merger or otherwise, or divest liabilities (or enter into any agreement with respect to any of the foregoing) in each case only if (x)
(a) the taking of such action (or in the case of an agreement, the transaction contemplated thereby) by a holding company registered under the 1935 Act has generally been permitted or approved by the SEC (or by the Staff of the SEC acting pursuant to authority delegated by the SEC) under the 1935 Act and under then applicable SEC orders, or (b) based on discussions with the Staff of the SEC (the substance of which has been communicated to GPU), the parties reasonably believe such action (or in the case of an agreement, the transaction contemplated thereby) would be approved and (y) obtaining the approval of the SEC (or the Staff of the SEC pursuant to delegated authority) under the 1935 Act, and the Closing Dateconditions to, Seller such approval, would not materially delay or impede the Merger past the End Date in effect at the time of the action (or in the case of an agreement, as of the date of the agreement), provided further, however, that if such new line of business, change in any line of business that FirstEnergy or its Subsidiaries engage in as of the date hereof, assets disposed of or acquired or divested liability is material, then such event has been disclosed in the Joint Proxy Statement or an amendment thereto. FirstEnergy shall not, and shall not permit any of the Companies its Subsidiaries to, with respect to the Business:
(i) make any material change in the conduct of the Business as conducted as of the Execution Date sell, lease, license or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability 44 56 otherwise dispose of any of the Assets;
shares of common stock of Ohio Edison Company (iv"OE"), The Cleveland Electric Illuminating Company ("CEI"), The Toledo Edison Company ("TE") enter into any new or Pennsylvania Power Company (or amend any existing) employment"PP"), severance or consulting agreementexcept, grant any general increase in the compensation case of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemedSubsidiary, to be in the ordinary course of business consistent with past practice;
(v) make FirstEnergy or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoingSubsidiary's immediate parent company.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Merger Agreement (Firstenergy Corp)
Ordinary Course. Except as explicitly permitted by this Agreement or as otherwise approved by Relief in writing in advance, during the Pre-Closing Period:
(a) From NRx will: (i) operate its business with respect to the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business Product in the ordinary course and consistent with past practice. Without practices; (ii) comply with all applicable Laws applicable to its business; and (iii) use Commercially Reasonable Efforts to maintain good relations with the prior written consent of Buyer or except as required or expressly permitted pursuant counterparties to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall Transferred Contracts;
(b) NRx will not permit any of the Companies to, with respect to the Business:
(i) make sell, license, transfer, assign, license, discard, destroy, dispose of or create any material change Liens (other than Permitted Liens) in the conduct of the Business as conducted as of the Execution Date Transferred Assets, or enter into any material transactionagreement or undertake any new obligation with any Person with respect to the Transferred Assets; or (i) terminate or amend any of the Transferred Contracts other than as required by the terms of any such Transferred Contracts;
(iic) make NRx will use Commercially Reasonable Efforts to defend any salechallenge or opposition relating to the Transferred Patents, assignmentwhich challenge, transferor opposition shall have, abandonment or other conveyance of the Assets or any part thereofshall be reasonably likely to have, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practicea Material Adverse Effect;
(iiid) subject any of the Assets, or any part promptly after obtaining knowledge thereof, to any Lien NRx shall notify Relief of (i) the occurrence or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability non-occurrence of any fact or event which causes or would be reasonably likely to cause (A) any representation or warranty of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase NRx contained in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, this Agreement to be in the ordinary course of business consistent with past practice;
(v) make untrue or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend inaccurate in any material respect or terminate (B) any Material Contract; or
(xiii) agreecovenant, resolve condition or commit agreement of NRx in this Agreement not to do be complied with or satisfied in any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shallmaterial respect, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) fileany failure of NRx to comply with or satisfy any covenant, when due condition or requiredagreement to be complied with or satisfied by it hereunder; provided that no such notification shall affect the representations or warranties of NRx or Relief or Relief’s right to rely thereon, federal, state, foreign and or the conditions to the obligations of Relief hereunder. NRx shall give prompt notice in writing to Relief of any written notice or other Tax returns and other reports communication from any Person alleging that the Consent of such Person is or may be required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against obtained by NRx in connection with the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practiceTransactions; and
(ve) NRx and its Affiliates will continue to maintain the existing business relationships enforce all agreements protecting Know How and Confidential Information consistent with the suppliers and customers of the Companies other than relationships not economically beneficial past practices to the Companiesextent such agreements are not otherwise transferred to Relief pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Relief Therapeutics Holding SA)
Ordinary Course. (a) From Each of FAFCO and EXPERIAN hereby covenants and agrees that, except as set forth on Schedule 5.01 attached hereto or as otherwise permitted, required or specifically contemplated by this Agreement and the Interim Operating Agreement or as otherwise consented to or approved by each of the other Parties, during the period commencing on the date hereof and until ending on the earlier of the Closing Date Effective Date, it will operate or the termination of this Agreement pursuant cause to Article X, Seller shall, be operated its Business substantially as presently operated and shall cause each of the Companies to, conduct the Business only in the ordinary course (which shall include the ordinary course payment of accounts payable and billing and collection of accounts receivable consistent with past practice. Without the prior written consent current operations of Buyer or except as required or expressly permitted pursuant its Business), and consistent with such operation, will use its reasonable best efforts to maintain present business organizations and relationships with persons having business dealings with its Business and to retain the terms hereof, between services of its key operating employees engaged in operating its Business (it being understood and agreed that operation of the Businesses during the period commencing on the date hereof and ending on the Closing Effective Date in accordance with the terms of the Interim Operating Agreement shall be in compliance with the terms of this Section 5.01). Each of FAFCO and EXPERIAN hereby further covenants and agrees that from the date hereof to the Effective Date, Seller shall in connection with the operation of its Business, except as provided in the immediately preceding sentence, it will not, and shall it will not permit any of the Companies its Subsidiaries to, with respect to without the Business:
(i) make any material change in the conduct consent of each of the Business as conducted as of the Execution Date or other Parties (which consent shall not unreasonably be withheld), (a) enter into any material transaction;
(ii) make any saletransactions, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value than those in the ordinary course of business consistent its Business as theretofore conducted and those set forth on Schedule 5.01 attached hereto, (b) create or otherwise become liable with past practice;
(iii) subject any of the Assetsrespect to money borrowed or purchase money indebted ness, or voluntarily incur any part thereofother material liability or obligation (direct or contingent), to any Lien or suffer such to exist, other than such Liens as may arise except liabilities in the ordinary course of business consistent with past practice by the operation of Law and that do not and will notits Business, individually or in (c) increase the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability rate of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employeeemployee employed in its Business, who would receive, after giving effect to such increase, aggregate compensation at an annual rate exceeding $300,000, or make any material increase in any bonus, insurance, profit sharing or other employee benefit plan, grant any general wage or salary increase, except as required by amendments to plans applicable to its employees generally and which are applicable to employees of its Business only as a consequence thereof, (d) make any capital expenditures in accordance with pre-existing contractual provisions excess of $500,000 individually or $1,000,000 in the ordinary course aggregate, (e) terminate or waive any right of business consistent with past practicesubstantial value to its Business, (f) make any material change in accounting methods except as required by law or hire applicable generally accepted accounting principles, (g) settle, compromise or admit liability in any new employees material action, suit or proceeding at law or equity or any material arbitration or any material administrative or other proceeding before any administrative or governmental body in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(ivits Business or (h) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit agree to do any of the foregoing, whether or not in writing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Contribution and Joint Venture Agreement (First American Financial Corp)
Ordinary Course. (a) From PCB shall carry on its business in, and only in, the date hereof usual, regular and until ordinary course in substantially the earlier same manner as heretofore conducted. For purposes of this Agreement, the "Ordinary Course of Business" of either party shall consist of the Closing Date or the termination of this Agreement pursuant banking and related businesses as presently conducted by it in compliance with customary safe and sound banking practices and applicable banking laws and regulations. PCB shall use all reasonable efforts to Article Xpreserve intact its present business organizations, Seller shallmaintain its rights and franchises and preserve its relationships with customers, suppliers and shall cause each of the Companies to, conduct the Business in the ordinary course consistent others having business dealings with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant them to the terms hereof, between the date hereof end that its goodwill and the Closing Date, Seller shall not, and ongoing businesses shall not permit be impaired in any of the Companies to, with respect to the Business:material respect.
(i) make Specifically, and not by way of limitation, PCB shall cause its officers to:
(A) comply with all Applicable Laws;
(B) use their best efforts to keep in force, at not less than the present limits, all policies of insurance (including deposit insurance of the FDIC) to the extent reasonably practicable in light of the prevailing market conditions in the insurance industry;
(C) use their best efforts to keep available to Scripps the services of its present officers and employees (it being understood that PCB shall have the right to terminate the employment of any of its officers or employees in accordance with its established employment procedures);
(D) comply with all orders, agreements and memoranda of understanding with respect to it made by or with the Regulatory Agencies or any other regulatory authority of competent jurisdiction, and promptly forward to the Scripps all communications received from any such authority that are not prohibited by such authority from being so disclosed and inform Scripps of any material change restrictions imposed by any governmental authority on its business;
(E) with respect to any extension of credit in excess of $50,000, not waive or release any right or collateral or cancel or compromise any debt or claim, except in the conduct Ordinary Course of Business;
(F) not make, re-negotiate, renew, increase, extend or purchase any loans, advances or loan commitments, in each case to any of its officers, directors or any affiliated or related persons of such directors or officers except in the Ordinary Course of Business consistent with its established loan procedures and in compliance with applicable rules of the Business as conducted as Regulatory Agencies;
(G) not take any action to create, relocate or terminate the operations of the Execution Date any banking office or enter into branch, or to form any material transaction;new subsidiary or affiliated entity; and
(H) not settle or otherwise take any action to release or reduce any of its rights with respect to any litigation involving a claim of more than $25,000 in which PCB is a party.
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;PCB shall not:
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(ivA) enter into any new material line of business;
(B) change its lending, investment, liability management and other material banking policies in any material respect;
(C) incur or amend commit to any existing) employment, severance capital expenditures or consulting agreement, grant any general increase obligations or liabilities in connection therewith other than capital expenditures and obligations or liabilities which are not in excess or $25,000 and which are incurred or committed to in the compensation Ordinary Course of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business Business consistent with past practice, or hire any new employees in respect practice and the items shown on Section 4.1(a) of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practicePCB Disclosure Schedule;
(vD) make or commit itself to make any capital expenditure loan with a principal amount in excess of five thousand dollars ($5,000);
(vi) pay400,000, lendprovided that Scripps consent shall be deemed given unless it objects and states the basis of its objection in writing, or advance verbally with prompt written confirmation, within two business days after receipt of written notice directed to authorized personnel of Scripps, together with sufficient supporting information to allow Scripps to make an informed judgment, and Scripps shall not unreasonably withhold its consent; provided, further, that any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any consent given by Scripps shall be binding only if given by authorized personnel of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material ContractScripps; or
(xiiiE) agree, resolve or commit to do purchase any investment security with a maturity in excess of the foregoingtwo years.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct PCB shall promptly notify Scripps in writing upon the Business occurrence by it of any of the Companies in following:
(A) the ordinary course classification of business consistent with past practiceany loan as substandard, doubtful or loss;
(ivB) keep and maintain the books filing or commencement of account, records and files of the Companies in the ordinary course of business and in accordance with existing practiceany legal action or other proceeding or investigation against it; andor
(vC) continue to maintain the existing business relationships with the suppliers and customers of the Companies other its pre-tax earnings in any month are less than relationships not economically beneficial to the CompaniesFifty Thousand Dollars ($50,000).
Appears in 1 contract
Ordinary Course. (ai) From The Company and its Subsidiaries shall carry on their respective businesses in the date hereof usual, regular and until ordinary course in all material respects, in substantially the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shallsame manner as heretofore conducted, and shall cause each use all reasonable efforts to preserve intact their present lines of business, maintain their rights and 43 36 franchises and preserve their relationships with customers, suppliers and others having business dealings with them; provided, however, that no action by the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer Company or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, its Subsidiaries with respect to the Business:
(imatters specifically permitted by any other provision of this Section 4.1 shall be deemed a breach of this Section 4.1(a)(i) make any material change in the conduct unless such action would constitute a breach of the Business as conducted as one or more of the Execution Date or enter into any material transaction;such other provisions.
(ii) make Neither the Company nor its Subsidiaries shall (a) enter into any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course new material line of business consistent with past practice;
or (iiib) subject any of the Assets, incur or any part thereof, commit to any Lien or suffer such to exist, capital expenditures other than such Liens as may arise capital expenditures incurred or committed to in the ordinary course of business consistent with past practice by operation and which, together with all such expenditures incurred or committed since January 1, 1998, are not in excess of Law and that do not and will not, individually or either of (1) 125% of the respective amounts in the aggregatefollowing two categories, have a Material Adverse Effect (x) capital expenditures for manufacturing and distribution and (y) capital expenditures for film and music, or interfere materially with the use, operation, enjoyment or marketability of any (2) 110% of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase aggregate amount set forth in the compensation Company's 1998 capital expenditure budget, as previously disclosed to Purchaser or, if the Closing has not occurred prior to December 31, 1998, such additional amounts for any subsequent period as may be consented to by Purchaser, such consent not to be unreasonably withheld, or, if Purchaser shall not have so consented, not greater than an amount equal to 110% of officers or employees a pro rata portion of the Company's 1998 capital expenditure budget (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees that in respect of each three-month period commencing January 1, 1999, 110% of 25% of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall aggregate 1998 budget will be deemed, deemed to be in the ordinary course of business consistent with past practice;
(v) make or commit to make budget for such period); provided, however, that, no commitment for any individual capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect that will not be completed within 12 months of the Companies in the ordinary course date of business consistent with past practices;
(viii) take any other action commitment may be made that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoingexceeds $7.5 million.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Offer Agreement (Seagram Co LTD)
Ordinary Course. (a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller FirstEnergy shall, and shall cause --------------- each of the Companies its Subsidiaries to, conduct the Business carry on its business in the ordinary course consistent and use all commercially reasonable efforts to preserve intact their goodwill, preserve the goodwill and relationships with past practice. Without customers, suppliers and others having business dealings with them and, subject to prudent management of workforce needs and ongoing programs currently in force, keep available the prior written consent services of Buyer or except as required or expressly permitted pursuant their present officers and employees, provided, however, that, to the terms hereofextent permitted by Section -------- ------- 6.15, between FirstEnergy may enter into a new line of business, make any change in the lines of business it engages in as of the date hereof or dispose of or acquire assets, by merger or otherwise, or divest liabilities (or enter into any agreement with respect to any of the foregoing) in each case only if (x)
(a) the taking of such action (or in the case of an agreement, the transaction contemplated thereby) by a holding company registered under the 1935 Act has generally been permitted or approved by the SEC (or by the Staff of the SEC acting pursuant to authority delegated by the SEC) under the 1935 Act and under then applicable SEC orders, or (b) based on discussions with the Staff of the SEC (the substance of which has been communicated to GPU), the parties reasonably believe such action (or in the case of an agreement, the transaction contemplated thereby) would be approved and (y) obtaining the approval of the SEC (or the Staff of the SEC pursuant to delegated authority) under the 1935 Act, and the Closing Dateconditions to, Seller such approval, would not materially delay or impede the Merger past the End Date in effect at the time of the action (or in the case of an agreement, as of the date of the agreement), provided further, -------- ------- however, that if such new line of business, change in any line of business ------- that FirstEnergy or its Subsidiaries engage in as of the date hereof, assets disposed of or acquired or divested liability is material, then such event has been disclosed in the Joint Proxy Statement or an amendment thereto. FirstEnergy shall not, and shall not permit any of the Companies its Subsidiaries to, with respect to the Business:
(i) make any material change in the conduct of the Business as conducted as of the Execution Date sell, lease, license or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability otherwise dispose of any of the Assets;
shares of common stock of Ohio Edison Company (iv"OE"), The Cleveland Electric Illuminating Company ("CEI"), The -- --- Toledo Edison Company ("TE") enter into any new or Pennsylvania Power Company (or amend any existing) employment"PP"), severance or consulting agreementexcept, grant any general increase -- -- in the compensation case of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemedSubsidiary, to be in the ordinary course of business consistent with past practice;
(v) make FirstEnergy or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoingSubsidiary's immediate parent company.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Ordinary Course. The Company shall not conduct any business or engage in any activities other than activities related to the closing of the transactions contemplated by this Agreement. In such connection, the Company further represents and warrants to DS that since February 28, 2010,
(a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business there has not been any Material Adverse Change in the ordinary course consistent with past practice. Without the prior written consent business, operations, properties, assets, or condition of Buyer or BCO;
(b) BCO has not (i) amended its Articles of Incorporation, except as required in connection with a three for one stock split effected in June 2010; (ii) declared or expressly permitted pursuant made, or agreed to the terms hereofdeclare or make, between the date hereof and the Closing Dateany payment of dividends or distributions of any assets of any kind whatsoever to stockholders or purchased or redeemed, Seller shall notor agreed to purchase or redeem, and shall not permit any of the Companies to, with respect to the Business:
outstanding capital stock; (iiii) make made any material change in the conduct its method of the Business as conducted as of the Execution Date management, operation, or enter accounting; (iv) entered into any material transaction; or (v) made any accrual or arrangement for payment of bonuses or special compensation of any kind or any severance or termination pay to any present or former officer or employee;
(iic) make BCO has not (i) borrowed or agreed to borrow any salefunds or incurred, assignmentor become subject to, transfer, abandonment any material obligation or other conveyance of the Assets liability (absolute or any part thereof, contingent) except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value liabilities incurred in the ordinary course of business consistent with past practice;
business; (iiiii) subject paid any of the Assets, material obligation or any part thereof, to any Lien liability (absolute or suffer such to exist, contingent) other than such Liens as may arise current liabilities reflected in or shown on the most recent BCO balance sheet, and current liabilities incurred since that date in the ordinary course of business consistent with past practice by operation of Law and that do not and will notbusiness; (iii) sold or transferred, individually or in the aggregateagreed to sell or transfer, have a Material Adverse Effect any material assets, properties, or interfere materially with the userights, operationor canceled, enjoyment or marketability agreed to cancel, any material debts or claims; or (iv) made or permitted any material amendment or termination of any of the Assetscontract, agreement, or license to which it is a party;
(ivd) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase Notwithstanding anything to the contrary in the compensation foregoing, BCO shall have divested itself of officers or employees (including any such increase pursuant all of its assets and have no liabilities on the date of the Closing except those permitted to any Employee Benefit Plan), grant any increase be retained by DS and all of the business operations of BCO as described in the compensation payable or to become payable to any employee, except in accordance with preBCO Form 10-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees K for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation year ended August 31, 2009 shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoinghave been discontinued.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Bco Hydrocarbon LTD)
Ordinary Course. (a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller FirstEnergy shall, and shall cause each of the Companies its Subsidiaries to, conduct the Business carry on its business in the ordinary course consistent and use all commercially reasonable efforts to preserve intact their goodwill, preserve the goodwill and relationships with past practice. Without customers, suppliers and others having business dealings with them and, subject to prudent management of workforce needs and ongoing programs currently in force, keep available the prior written consent services of Buyer or except as required or expressly permitted pursuant their present officers and employees, provided, however, that, to the terms hereofextent permitted by Section 6.15, between FirstEnergy may enter into a new line of business, make any change in the lines of business it engages in as of the date hereof or dispose of or acquire assets, by merger or otherwise, or divest liabilities (or enter into any agreement with respect to any of the foregoing) in each case only if (x)
(a) the taking of such action (or in the case of an agreement, the transaction contemplated thereby) by a holding company registered under the 1935 Act has generally been permitted or approved by the SEC (or by the Staff of the SEC acting pursuant to authority delegated by the SEC) under the 1935 Act and under then applicable SEC orders, or (b) based on discussions with the Staff of the SEC (the substance of which has been communicated to GPU), the parties reasonably believe such action (or in the case of an agreement, the transaction contemplated thereby) would be approved and (y) obtaining the approval of the SEC (or the Staff of the SEC pursuant to delegated authority) under the 1935 Act, and the Closing Dateconditions to, Seller such approval, would not materially delay or impede the Merger past the End Date in effect at the time of the action (or in the case of an agreement, as of the date of the agreement), provided further, however, that if such new line of business, change in any line of business that FirstEnergy or its Subsidiaries engage in as of the date hereof, assets disposed of or acquired or divested liability is material, then such event has been disclosed in the Joint Proxy Statement or an amendment thereto. FirstEnergy shall not, and shall not permit any of the Companies its Subsidiaries to, with respect to the Business:
(i) make any material change in the conduct of the Business as conducted as of the Execution Date sell, lease, license or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability otherwise dispose of any of the Assets;
shares of common stock of Ohio Edison Company (iv"OE"), The Cleveland Electric Illuminating Company ("CEI"), The Toledo Edison Company ("TE") enter into any new or Pennsylvania Power Company (or amend any existing) employment"PP"), severance or consulting agreementexcept, grant any general increase in the compensation case of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemedSubsidiary, to be in the ordinary course of business consistent with past practice;
(v) make FirstEnergy or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoingSubsidiary's immediate parent company.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Ordinary Course. Company shall, and shall cause each of the other Target Companies to, carry on its business in the ordinary course consistent with past practice, will continue to observe its obligations to comply with the requirements of all applicable Laws and regulations, and will use commercially reasonable efforts to (ai) From preserve intact its present business organization and its assets, (ii) keep available the date hereof services of its officers, consultants, and until employees (other than termination of such services for cause), (iii) maintain and preserve the goodwill and relationships with manufacturers, customers, suppliers, contractors, distributors, and others having business relationships with it and (iv) maintain its books, records and financials in accordance with applicable Accounting Principles. Company will promptly notify Buyer of any event or occurrence not in the ordinary course of business of any Target Company that would result, or could reasonably be expected to result, individually or in the aggregate, in a Company Material Adverse Effect. Without limiting the above, prior to the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer X or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller the Company shall not, and shall cause its subsidiaries to not permit (except as (i) expressly contemplated by this Agreement, (ii) as required by applicable Law, or (iii) as otherwise consented to in advance in writing by Buyer, which consent shall not be unreasonably delayed, conditioned or withheld):
(a) except as required under the terms of any agreement existing as of the date of this Agreement as disclosed in the Company Disclosure Schedule, (i) increase the compensation or benefits of any of the Companies tocurrent or former directors, with respect to the Business:
officers, employees or consultants of any Target Company (i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
collectively, “Employees”), (ii) make establish or amend any saleBenefit Plan, assignment(iii) terminate the employment of any Employee (other than due to terminations for cause), transferor (iv) grant any severance or termination pay to any Employee, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth than in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the such Target Company’s ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viiib) take assign, transfer, dispose of, or license ownership of Company IP Rights or any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth thereinassets;
(ixc) make authorize for issuance, issue, grant, sell, dispose of or propose to issue, grant, sell or dispose of any change of its equity interests, Convertible Securities or any commitments, subscriptions or rights of any kind to acquire or sell any of its equity interests, Convertible Securities or other securities, including any securities convertible into or exchangeable for any of its shares or other equity interests or securities of any class and any other equity-based awards, or engage in any method hedging transaction with a third Person with respect to such securities;
(d) abandon or permit to lapse any Company IP Rights;
(e) disclose any of accounting Company’s Trade Secrets to any third party, other than pursuant to confidentiality agreements;
(f) declare, set aside, or accounting principlepay any distribution with respect to any Company Shares, methodor repurchase, estimate redeem, or practiceacquire any outstanding Company Shares or other ownership interests in Company, except or otherwise change the capitalization of any Target Company in any manner from the way it existed on the date of this Agreement;
(g) amend Company’s Organizational Documents or comparable charter or governance documents of any Target Company;
(h) incur, create, assume, prepay or otherwise become liable for any such change required by reason of Indebtedness (directly, contingently or otherwise), make a concurrent change loan or advance to or investment in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable third party (other than advancement of expenses to employees in the ordinary course of business consistent with past practicebusiness), or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
(xi) except as set forth on Schedule 6.1(a)(x)commence a lawsuit, or settle, compromise, or otherwise terminate any litigation, claim, investigation, or other settlement negotiation;
(j) make or change any Tax election, change payments to any third parties in excess of $100,000;
(k) extend an offer of employment to a candidate whose annual Tax accounting period, adopt or change any method compensation shall be in excess of Tax accounting, file any amended Tax Return, $300,000;
(l) enter into any closing agreement relating to Taxesjoint venture, settle any Tax claim or assessmentpartnership, surrender any right to claim a Tax refundlimited liability company, or consent to operating agreement with any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the CompaniesPerson;
(xim) settleenter into any Company Material Contract or breach, release modify, amend, or forgive terminate any claim Company Material Contracts (including insurance policies covering Company’s properties or litigation assets), or waive waive, release, or assign any rightrights or claims under any Company Material Contracts, except as expressly required or permitted by this Agreement;
(xiin) makevoluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $300,000 individually or $600,000 in the aggregate other than pursuant to the terms of a Company Material Contract;
(o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization;
(p) acquire or dispose of capital stock of any third party or merge or consolidate with any third party;
(q) establish any subsidiary or enter intointo any new line of business;
(r) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, modifyoperations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(s) sell, amend lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(t) knowingly take any action that would or is reasonably likely to (i) make any representation or warranty of Company contained in this Agreement inaccurate, (ii) result in any material respect of the conditions in Article VII not being satisfied, or terminate any Material Contract(iii) impair the ability of Company to consummate the Transactions in accordance with the terms of this Agreement; or
(xiiiu) agreeauthorize, resolve commit, or commit agree to do take any of the foregoingforegoing actions.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Renovaro Biosciences Inc.)
Ordinary Course. (a) From Except as may otherwise be expressly provided by the date hereof and until the earlier of the Closing Date or the termination terms of this Agreement pursuant to Article XAgreement, Seller shall, RCPI shall (and shall cause each of the Companies its Subsidiaries to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:)
(i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value operate only in the ordinary course of business consistent with past practice;
practices, (ii) not take or permit any action or omission that would cause any of the representations or warranties of RCPI contained herein to become inaccurate in any material respect or any of the covenants of RCPI to be breached in a material manner, and (iii) subject any take such reasonable steps as may be within its power prior to the Closing so that it shall continue to qualify to be taxed as a REIT, based on the income and assets of RCPI for the periods prior to the Closing, as long as a REIT is accorded substantially the same treatment under the United States income tax laws from time to time in effect as under Sections 856-860 of the AssetsCode, or any part thereofin effect at the date of this Agreement, to any Lien or suffer such to existas originally executed. For the purposes of the foregoing, other than such Liens as may arise in the phrase "ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or practices" shall include changes in the aggregateordinary course of business of RCPI instituted as a result of, have a Material Adverse Effect or interfere materially with and shall take into account the useeffects of, operation, enjoyment or marketability the Borrower's Chapter 11 Case (it being understood that such construction shall not relieve RCPI of any of its obligations under this Agreement). Except as may be required by Law or as expressly provided by the Assetsterms of this Agreement, RCPI shall not (and shall cause each of its Subsidiaries not to):
(A) declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, Common Stock or other equity securities unless and to the extent required to meet qualification rules for a REIT under Section 857(a) of the Code or to avoid any excise tax under Section 4981 of the Code;
(ivB) enter into authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any new (shares of its capital stock, any other voting securities or amend any existing) employmentsecurities convertible into, severance or consulting agreementany rights, grant warrants or options to acquire, any general increase in the compensation of officers such shares, voting securities or employees convertible securities or any other securities or equity equivalents (including any such increase pursuant without limitation stock appreciation rights);
(C) except as described on Sec- tion 4.2(b)(C) of the RCPI Disclosure Schedule or except with respect to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or annual bonuses made in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment, consulting or terminate other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any Material Contractcurrent or former director, officer, consultant or employee of RCPI or increase in any manner the compensation or fringe benefits of any current or former director, officer, consultant or employee of RCPI or any of its Subsidiaries, or pay any benefit not required by any existing arrangement or agreement or place any assets in any trust for the benefit of any director, officer or employee of RCPI;
(D) amend its Restated Certificate of Incorporation or By-laws;
(E) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to RCPI;
(F) (x) sell, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of or transfer any of its real property or material assets, whether now owned or hereafter acquired (other than the repayment of Debt or other liabilities as required by the agreements with respect thereto and subject to the terms of RCPI's other agreements as in effect as of the date hereof), (y) sell any of its real property or material assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable or notes with recourse to it) or (z) assign any right to receive income;
(G) incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of RCPI or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for Debt permitted to be incurred after December 31, 1995 under Section 4.4(b) hereof to fund Permitted Expenses (as hereinafter defined);
(H) make any loans, advances or capital contributions to, or investments in, any other Person;
(I) form, create or acquire any Subsidiary;
(J) incur or make payments with respect to any general and administrative expenses or any other expenditures or commitments of any kind, except for (x) the payment of interest on any Debt pursuant to the terms of the agreements with respect thereto, (y) general and administrative expenses in amounts not to exceed the amounts identified as "Total G&A Expenses" on Schedule A incurred or paid during the months set forth on Schedule A and (z) payments required to be made under interest rate swap agreements to which RCPI is a party as of the date hereof in amounts not to exceed the amounts identified as "Swap Expenses" on Schedule A paid during the months set forth on Schedule A (together with any "Transaction Costs" set forth on Schedule B, the payments referred to in clauses (x), (y) and (z) being referred to as "Permitted Expenses"); provided that any amounts to be incurred or paid pursuant to clause (y) or (z) in any month in accordance with Schedule A may be paid in any subsequent month rather than in the scheduled month;
(K) except as described on Section 4.2(b)(K) of the RCPI Disclosure Schedule, waive, release, grant, or transfer any rights of value or modify or change in any material respect any material existing license, lease, Contract or other document (including, without limitation, the RCPI Indenture);
(L) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(M) (x) amend or in any way waive or modify in any manner adverse to RCPI or the Investors (other than in connection with any debtor-in-possession financing permitted by clause (Q) below) any provision of the Mortgage or the Mortgage Note or the 1985 Loan Agreement or the Purchase Option or (y) exercise the rights granted to it in the Purchase Option and Article X of the 1985 Loan Agreement;
(N) change any of its accounting principles, unless required by the SEC or the Financial Accounting Standards Board;
(O) settle or compromise any shareholder derivative or class action suits arising out of the transactions contemplated hereby or any other litigation (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, individually in an amount in excess of $100,000 and in the aggregate in an amount in excess of $1,000,000, other than in consultation and cooperation with Parent, and with respect to any such settlement, with the prior written consent of Parent (which consent shall not be unreasonably withheld);
(P) enter into any transaction or series of transactions with any Affiliate of RCPI or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to RCPI as would be obtainable by RCPI at the time of such transaction with a Person that is not an Affiliate of RCPI;
(Q) consent to or approve (x) any debtor- in-possession financing other than the debtor-in-possession financing approved by order of the Bankruptcy Court on October 30, 1995 (the "DIP Facility"), as limited by that certain Stipulation and Order Supplementing Cash Collateral Orders in Connection with Debtor in Possession Financing (the "Stipulation"), except that RCPI shall not consent to any borrowings under subparagraph 1(iii) or (iv) of the Stipulation, or (y) any application of the proceeds of any debtor-in-possession financing that deviates from the uses approved by the Bankruptcy Court or permitted by the Stipulation, in either case, without Parent's written consent, which shall not be unreasonably withheld or delayed; or
(xiiiR) agree, resolve or commit agree to do take any of the foregoingactions described in clauses (A) through (Q) above.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Merger Agreement (Whitehall Street Real Estate Limited Partnership V)
Ordinary Course. (a) From the date hereof and of this Agreement until the earlier of the Closing Date or (the termination of this Agreement pursuant to Article X, Seller shall"Interim Period"), and shall cause each of subject to any limitations under the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies toIsraeli Antitrust Law, with respect to the Business, other than (i) with the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed) or (ii) as expressly contemplated hereunder:
(i) make any material change Seller shall conduct the Business in the conduct of usual, regular and ordinary course and in substantially the same manner as the Business as has been conducted as prior to the date of the Execution Date or enter into any material transactionthis Agreement;
(ii) Seller shall comply with all legal requirements and contractual liabilities in all material respects applicable to the operation of the Business and pay all applicable Taxes as and when due and payable;
(iii) Seller shall use reasonable commercial efforts to keep available the service of the Employees and to preserve intact its current business organization and maintain its relations with all material suppliers, customers, landlords, creditors, and other Persons having business relationships with Seller, all in the ordinary course of business;
(iv) Seller shall not make any sale, assignment, transfer, abandonment or other conveyance of a material part of the Assets or any part thereofAcquired Assets, except transactions pursuant to the existing contracts set forth in the Schedules hereto and dispositions of worn-out Contracts or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise transactions in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practiceunaffiliated third Persons;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or Seller shall not enter into any material new customer, supplier, lease, reseller or distributor agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(xvi) except as set forth on Schedule 6.1(a)(x), make or Seller shall not materially change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver the business practices of the limitations period applicable to any Tax claim or assessmentBusiness as presently conducted, in each case relating regard to the Companiescustomer credit terms, accounts receivable and payable;
(xivii) settleSeller shall not sell, release lease, license, or forgive otherwise dispose of or grant any claim license to any material Business Intellectual Property Rights, other than non-exclusive licenses or litigation or waive any rightleases granted to customers in the ordinary course of business;
(xiiviii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do Seller shall not subject any of the foregoing.
(b) From and after the date hereof and until the Closing DateAcquired Assets, Seller shallor any part thereof, and shall cause each of the Companies to, with respect to the Business:
(i) continue any Lien or suffer such to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign exist other than Permitted Liens and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies than such non-material Liens as may arise in the ordinary course of business consistent with past practicepractice or by operation of law;
(ivix) keep and maintain Seller shall not purchase, lease or otherwise acquire any material asset for the books Business outside the ordinary course of account, records and files business;
(x) Seller shall not change the terms of any employment agreements or compensation practices with senior employees of the Companies Business or make across-the-board changes in employment agreements or compensation practices or enter into any new (or amend any existing) employee benefit plan, program or arrangement, except in accordance with pre-existing contractual provisions;
(xi) Seller shall not materially change its policies and practices with respect to collection of accounts receivable, payment of accounts payable or the grant of discounts or rebates;
(xii) Seller shall not enter, modify or amend in any material respect or terminate any contract that is material to the Business or announce or commence any material offering or campaign to customers if such action would have an adverse effect on the Business;
(xiii) Seller shall not solicit or enter into any transaction to sell the Business or a substantial part thereof, directly or indirebtly other than as contemplated by this Agreement;
(xiv) Seller shall not waive, cancel, compromise, settle or release any rights or claims of material value, outside the ordinary course of business, that are Acquired Assets;
(xv) Seller, solely through its CEO, shall confer on a regular and reasonable basis with Representatives of Purchaser to report on operational matters and the general status of ongoing operations of the Business; and
(xvi) Seller shall not agree or commit to take any of the actions described above.
(b) Without derogating from the foregoing, nothing in this Section 6.1 is intended to inhibit or otherwise restrict the Seller from conducting its business during the Interim Period in the ordinary course of business and or from taking actions in accordance with existing practice; and
(v) continue furtherance of the Bezeq Transaction. Nothing contained in this Agreement is intended to maintain give Purchaser, directly or indirectly, the existing business relationships right to control or direct the Company's operations prior to the Closing Date or vice versa. Prior to the Closing, each of the Parties shall exercise, consistent with the suppliers terms and customers conditions of the Companies other than relationships not economically beneficial to the Companiesthis Agreement, complete control and supervision over its and its subsidiaries respective operations.
Appears in 1 contract
Ordinary Course. (a) From the date hereof hereof, except as contemplated by and until the earlier in furtherance of the Closing Date or Restructuring, the termination of this Agreement pursuant Parents and Seller will cause the Company and the Company’s subsidiaries to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business their business in the ordinary course consistent with past practice. Without in substantially the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall notsame manner in which it previously has been conducted, and not to (it being understood and agreed that the provisions hereof shall not permit any of the Companies tobe applicable to ▇▇▇▇, with respect but will be applicable to the Business:NEG Holding and its subsidiaries):
(a) (i) make acquire (by merger, consolidation, acquisition of stock or assets or otherwise) or organize, any material change in the conduct of the Business as conducted as of the Execution Date corporation, limited liability company, partnership, joint venture, trust or enter into other entity or person or any material transaction;
business organization or division thereof or (ii) make acquire any salerights, assignment, transfer, abandonment assets or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(xb) except as set forth on Schedule 6.1(a)(x)amend or otherwise change the constituent or organizational documents or alter through merger, make liquidation, reorganization, restructuring or change in any Tax election, change any annual Tax accounting period, adopt other fashion the corporate structure or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver ownership of the limitations period applicable to any Tax claim Company or assessment, in each case relating to the Companiesits subsidiaries;
(xic) settlesell, release divest, transfer or forgive otherwise dispose of any claim assets or litigation or waive any right;
(xii) makeequity interests, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any except regular sales of oil and gas sold from out of the foregoing.
(b) From ground or storage tanks or other inventories and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies supplies in the ordinary course of business consistent with past practice;
(iv) keep and maintain ; provided, that the books Company may also sell, divest, transfer or otherwise dispose of account, records and files of the Companies other assets in the ordinary course of business consistent with past practice not in excess in the aggregate of $100,000, or such other assets in the ordinary course of business consistent with past practice with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition shall be retained for the benefit of Buyer at Closing and shall not be counted towards the Cash Amount or Net Working Capital);
(d) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any lien (other than liens securing the Credit Facility and immaterial liens) on, any of the assets of the Company or its subsidiaries, except in the ordinary course of business in accordance with existing past practice; and;
(ve) continue other than to maintain borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any indebtedness for borrowed money or issue any debt securities or any warrants or rights to acquire any debt security (other than, with respect to the existing business relationships Company, in connection with the suppliers pending amendment to its bank facility), (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including without limitation, any financing commitments or obligations to Seller or any of its affiliates (other than the Company or its subsidiaries);
(f) pay, make or declare any dividends or distributions (other than cash tax distributions and customers cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001)(5) in respect of any of its equity interests; or
(g) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any equity interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any equity interest or any other ownership interest of the Companies other than relationships not economically beneficial to the CompaniesCompany or any of its subsidiaries.
Appears in 1 contract
Sources: Exclusivity Agreement and Letter of Intent (American Real Estate Partners L P)
Ordinary Course. (a) From Except as expressly permitted by this Agreement or with the date hereof and until the earlier prior written consent of the Closing Date Lender (not to be unreasonably withheld, conditioned or delayed), during the termination of this Agreement pursuant to Article XExclusivity Period, Seller the Company shall, and shall cause each of the Companies its subsidiaries to, (a) conduct the Business its business in the ordinary course consistent with past practice, (b) comply in all material respects with all applicable laws and the requirements of all of its material contracts, (c) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, and (d) keep in full force and effect all material insurance policies maintained by the Company and its subsidiaries, other than changes to such policies made in the ordinary course of business. Without limiting the generality of the foregoing, except as expressly permitted by this Agreement or with the Lender’s prior written consent of Buyer (not to be unreasonably withheld, conditioned or except as required or expressly permitted pursuant to delayed), during the terms hereofExclusivity Period, between the date hereof and the Closing Date, Seller Company shall not, and shall not permit any of the Companies its subsidiaries to, with respect to the Business:
: (i) make issue, sell, grant, dispose of, pledge or otherwise encumber any material change in shares of its capital stock, voting securities or equity interests, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the conduct right to subscribe for any shares of the Business as conducted as of the Execution Date or enter into any material transaction;
its capital stock, (ii) make incur or assume any saleindebtedness, assignmentborrow any funds, transfer, abandonment or other conveyance of the Assets or guarantee any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or indebtedness unless in the ordinary course of business consistent with past practice, or hire issue or sell any new employees in respect debt securities or options, warrants, calls or other rights to acquire any debt securities, (iii) sell, transfer, lease, mortgage, encumber or otherwise dispose of the Business; provided that the hiring or subject to any lien or pledge any of employees for the positions listed on Schedule 6.1(a)(ivits properties or assets, (iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars US$25,000, ($5,000);
v) directly or indirectly acquire, dispose or invest in any equity interest or businesses of any person, (vi) payenter into, lendterminate or amend any material contract, (vii) increase in any manner the compensation of any of its directors, officers or advance any amount to, or sell, transfer or lease any properties or assets to, employees or enter into into, establish, amend or terminate any agreement employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity (or equity-based), pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, Seller for or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies of, any stockholder, director, officer, other employee, consultant or affiliate, other than with respect to employees – in the ordinary course of business consistent with past practices;
, (viii) make any changes in financial or tax accounting methods, principles or practices, (ix) amend the Company’s articles of association or other governing documents or any governing documents of any subsidiary of the Company, (x) pay, discharge, settle or satisfy any claims, liabilities, indebtedness or obligations (absolute, accrued, asserted or un-asserted, contingent or otherwise), (xi) settle or compromise any litigation or proceeding, and (xii) agree, in writing or otherwise, to take any other of the foregoing actions, or take any action that or agree, in writing or otherwise, to take any action which would cause any of the representations and or warranties made by Seller of the Company set forth in this Agreement to be untrue or delay the ability of the Parties to satisfy any of the Transaction Documents not to be terms and remain true and correct except as otherwise permitted by conditions forth in this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than Agreement. Nothing in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of above shall prevent the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) Company from continue to maintainoperate its business as done before, in all material respects, the Assets in accordance with past practice in on a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companiesbasis.
Appears in 1 contract
Sources: Senior Secured Convertible Loan Agreement (On Track Innovations LTD)
Ordinary Course. (a) From the date hereof The Partnership and until the earlier TIM ▇▇▇ll, and each of TIM, ▇▇ch of the Closing Date or the termination of this Agreement pursuant to Article XStockholders, Seller shall, TCC and TCLP shall cause each of the Companies toPartnership and TIM ▇▇, conduct the Business its Businesses only in the ordinary course and consistent with past practicepractices. Without limiting the prior written consent of Buyer or except as required or expressly permitted pursuant to foregoing, the terms hereof, between the date hereof Partnership and the Closing Date, Seller shall notTIM ▇▇▇ll, and shall not permit any each of TIM, ▇▇ch of the Companies toStockholders, with respect to TCC and TCLP shall cause the Business:
Partnership and TIM ▇▇, (i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any salecontinue to expend funds for sales promotion and marketing and to pay its bills and other obligations, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies all in the ordinary course of business consistent with past practices;
; and (viiiii) take any other action that would cause any make all capital expenditures described on or set forth in Exhibit 4.01(r) annexed hereto or which Western otherwise consents to in writing and agrees in writing to include as Reimbursable Capital Expenditures hereunder. Without limiting the foregoing, the Partnership and TIM ▇▇▇ll not, and none of TIM, ▇▇y of the representations and warranties made by Seller in any Stockholders, TCC or TCLP shall cause or permit the Partnership or TIM ▇▇, without the prior written consent of the Transaction Documents Western, such consent not to be unreasonably withheld, (A) incur any material liability, absolute or contingent, other than current liabilities arising in the ordinary course of business or pursuant to Contracts in existence on the date hereof and remain true set forth or described in Exhibit 5.01(s) annexed hereto or hereafter entered into as permitted pursuant to this Agreement, including TIM's indebtedness to TCC in the original principal amount of $200,000 upon TIM's acquisition of TCC's ownership interests in the Partnership as contemplated hereby, and correct other than additional draws under the Loan Agreement referenced in item 2 of Exhibit 5.01(p) hereto; (B) assume, guarantee, change any existing guarantee, endorse or otherwise as an accommodation become responsible for obligations of any other individual or entity (except as otherwise permitted by this Section 6.1 endorsement for collection or deposit of negotiable instruments received in the ordinary course of business and except for events pursuant to agreements or actions binding commitments in existence on the date hereof and set forth or described in Section 5.5 subject to the limitations set forth therein;
Exhibit 5.01(s) annexed hereto); (ixC) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x)and in amounts not exceeding $25,000 in the aggregate, make any loans or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent advances to any extension individual or waiver of the limitations period applicable entity; (D) sell, transfer, convey, mortgage, pledge, hypothecate or subject to any Tax lien, claim, security interest, charge, encumbrance, restriction, title retention agreement or any liability or claim or assessment, in each case relating to the Companies;
of any nature (xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any all of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.,
Appears in 1 contract
Ordinary Course. (a) From Except as may otherwise be expressly provided by the date hereof and until the earlier of the Closing Date or the termination terms of this Agreement pursuant to Article XAgreement, Seller shall, RCPI shall (and shall cause each of the Companies its Subsidiaries to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, with respect to the Business:)
(i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value operate only in the ordinary course of business consistent with past practice;
practices, (ii) not take or permit any action or omission that would cause any of the representations or warranties of RCPI contained herein to become inaccurate in any material respect or any of the covenants of RCPI to be breached in a material manner, and (iii) subject any take such reasonable steps as may be within its power prior to the Closing so that it shall continue to qualify to be taxed as a REIT, based on the income and assets of RCPI for the periods prior to the Closing, as long as a REIT is accorded substantially the same treatment under the United States income tax laws from time to time in effect as under Sections 856-860 of the AssetsCode, or any part thereofin effect at the date of this Agreement, to any Lien or suffer such to existas originally executed. For the purposes of the foregoing, other than such Liens as may arise in the phrase "ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or practices" shall include changes in the aggregateordinary course of business of RCPI instituted as a result of, have a Material Adverse Effect or interfere materially with and shall take into account the useeffects of, operation, enjoyment or marketability the Borrower's Chapter 11 Case (it being understood that such construction shall not relieve RCPI of any of its obligations under this Agreement). Except as may be required by Law or as expressly provided by the Assetsterms of this Agreement, RCPI shall not (and shall cause each of its Subsidiaries not to):
(A) declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, Common Stock or other equity securities unless and to the extent required to meet qualification rules for a REIT under Section 857(a) of the Code or to avoid any excise tax under Section 4981 of the Code;
(ivB) enter into authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any new (shares of its capital stock, any other voting securities or amend any existing) employmentsecurities convertible into, severance or consulting agreementany rights, grant warrants or options to acquire, any general increase in the compensation of officers such shares, voting securities or employees convertible securities or any other securities or equity equivalents (including any such increase pursuant without limitation stock appreciation rights);
(C) except as described on Section 4.2(b)(C) of the RCPI Disclosure Schedule or except with respect to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or annual bonuses made in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment, consulting or terminate other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any Material Contractcurrent or former director, officer, consultant or employee of RCPI or increase in any manner the compensation or fringe benefits of any current or former director, officer, consultant or employee of RCPI or any of its Subsidiaries, or pay any benefit not required by any existing arrangement or agreement or place any assets in any trust for the benefit of any director, officer or employee of RCPI;
(D) amend its Restated Certificate of Incorporation or By-laws;
(E) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to RCPI;
(F) (x) sell, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of or transfer any of its real property or material assets, whether now owned or hereafter acquired (other than the repayment of Debt or other liabilities as required by the agreements with respect thereto and subject to the terms of RCPI's other agreements as in effect as of the date hereof), (y) sell any of its real property or material assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable or notes with recourse to it) or (z) assign any right to receive income;
(G) incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of RCPI or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for Debt permitted to be incurred after December 31, 1995 under Section 4.4(b) hereof to fund Permitted Expenses (as hereinafter defined);
(H) make any loans, advances or capital contributions to, or investments in, any other Person;
(I) form, create or acquire any Subsidiary;
(J) incur or make payments with respect to any general and administrative expenses or any other expenditures or commitments of any kind, except for (x) the payment of interest on any Debt pursuant to the terms of the agreements with respect thereto, (y) general and administrative expenses in amounts not to exceed the amounts identified as "Total G&A Expenses" on Schedule A incurred or paid during the months set forth on Schedule A and (z) payments required to be made under interest rate swap agreements to which RCPI is a party as of the date hereof in amounts not to exceed the amounts identified as "Swap Expenses" on Schedule A paid during the months set forth on Schedule A (together with any "Transaction Costs" set forth on Schedule B, the payments referred to in clauses (x), (y) and (z) being referred to as "Permitted Expenses"); provided that any amounts to be incurred or paid pursuant to clause (y) or (z) in any month in accordance with Schedule A may be paid in any subsequent month rather than in the scheduled month;
(K) except as described on Section 4.2(b)(K) of the RCPI Disclosure Schedule, waive, release, grant, or transfer any rights of value or modify or change in any material respect any material existing license, lease, Contract or other document (including, without limitation, the RCPI Indenture);
(L) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(M) (x) amend or in any way waive or modify in any manner adverse to RCPI or the Investors (other than in connection with any debtor-in-possession financing permitted by clause (Q) below) any provision of the Mortgage or the Mortgage Note or the 1985 Loan Agreement or the Purchase Option or (y) exercise the rights granted to it in the Purchase Option and Article X of the 1985 Loan Agreement;
(N) change any of its accounting principles, unless required by the SEC or the Financial Accounting Standards Board;
(O) settle or compromise any shareholder derivative or class action suits arising out of the transactions contemplated hereby or any other litigation (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, individually in an amount in excess of $100,000 and in the aggregate in an amount in excess of $1,000,000, other than in consultation and cooperation with Parent, and with respect to any such settlement, with the prior written consent of Parent (which consent shall not be unreasonably withheld);
(P) enter into any transaction or series of transactions with any Affiliate of RCPI or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to RCPI as would be obtainable by RCPI at the time of such transaction with a Person that is not an Affiliate of RCPI;
(Q) consent to or approve (x) any debtor-in- possession financing other than the debtor-in-possession financing approved by order of the Bankruptcy Court on October 30, 1995 (the "DIP Facility"), as limited by that certain Stipulation and Order Supplementing Cash Collateral Orders in Connection with Debtor in Possession Financing (the "Stipulation"), except that RCPI shall not consent to any borrowings under subparagraph 1(iii) or (iv) of the Stipulation, or (y) any application of the proceeds of any debtor-in-possession financing that deviates from the uses approved by the Bankruptcy Court or permitted by the Stipulation, in either case, without Parent's written consent, which shall not be unreasonably withheld or delayed; or
(xiiiR) agree, resolve or commit agree to do take any of the foregoingactions described in clauses (A) through (Q) above.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Ordinary Course. (a) From Each of FAFCO and EXPERIAN hereby covenants and --------------- agrees that, except as set forth on Schedule 5.01 attached hereto or as otherwise permitted, required or specifically contemplated by this Agreement and the Interim Operating Agreement or as otherwise consented to or approved by each of the other Parties, during the period commencing on the date hereof and until ending on the earlier of the Closing Date Effective Date, it will operate or the termination of this Agreement pursuant cause to Article X, Seller shall, be operated its Business substantially as presently operated and shall cause each of the Companies to, conduct the Business only in the ordinary course (which shall include the ordinary course payment of accounts payable and billing and collection of accounts receivable consistent with past practice. Without the prior written consent current operations of Buyer or except as required or expressly permitted pursuant its Business), and consistent with such operation, will use its reasonable best efforts to maintain present business organizations and relationships with persons having business dealings with its Business and to retain the terms hereof, between services of its key operating employees engaged in operating its Business (it being understood and agreed that operation of the Businesses during the period commencing on the date hereof and ending on the Closing Effective Date in accordance with the terms of the Interim Operating Agreement shall be in compliance with the terms of this Section 5.01). Each of FAFCO and EXPERIAN hereby further covenants and agrees that from the date hereof to the Effective Date, Seller shall in connection with the operation of its Business, except as provided in the immediately preceding sentence, it will not, and shall it will not permit any of the Companies its Subsidiaries to, with respect to without the Business:
(i) make any material change in the conduct consent of each of the Business as conducted as of the Execution Date or other Parties (which consent shall not unreasonably be withheld), (a) enter into any material transaction;
(ii) make any saletransactions, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value than those in the ordinary course of business consistent its Business as theretofore conducted and those set forth on Schedule 5.01 attached hereto, (b) create or otherwise become liable with past practice;
(iii) subject any of the Assetsrespect to money borrowed or purchase money indebted ness, or voluntarily incur any part thereofother material liability or obligation (direct or contingent), to any Lien or suffer such to exist, other than such Liens as may arise except liabilities in the ordinary course of business consistent with past practice by the operation of Law and that do not and will notits Business, individually or in (c) increase the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability rate of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employeeemployee employed in its Business, who would receive, after giving effect to such increase, aggregate compensation at an annual rate exceeding $300,000, or make any material increase in any bonus, insurance, profit sharing or other employee benefit plan, grant any general wage or salary increase, except as required by amendments to plans applicable to its employees generally and which are applicable to employees of its Business only as a consequence thereof, (d) make any capital expenditures in accordance with pre-existing contractual provisions excess of $500,000 individually or $1,000,000 in the ordinary course aggregate, (e) terminate or waive any right of business consistent with past practicesubstantial value to its Business, (f) make any material change in accounting methods except as required by law or hire applicable generally accepted accounting principles, (g) settle, compromise or admit liability in any new employees material action, suit or proceeding at law or equity or any material arbitration or any material administrative or other proceeding before any administrative or governmental body in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(ivits Business or (h) hereto or any comparable positions without limitation shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit agree to do any of the foregoing, whether or not in writing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Contribution and Joint Venture Agreement (First American Financial Corp)
Ordinary Course. The Company shall not conduct any business or engage in any activities other than activities related to the closing of the transactions contemplated by this Agreement. In such connection, the company further represents and warrants to EAC that since June 30, 2011,
(a) From there has not been any Material Adverse Change in the date hereof and until the earlier business, operations, properties, assets, or condition of the Closing Date or Company;
(b) the termination of this Agreement pursuant to Article X, Seller shall, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall Company has not permit any of the Companies to, with respect to the Business:
(i) make amended its Articles of Incorporation; (ii) declared or made, or agreed to declare or make, any payment of dividends or distributions of any assets of any kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase or redeem, any outstanding capital stock; (iii) made any material change in the conduct its method of the Business as conducted as of the Execution Date management, operation, or enter accounting; (iv) entered into any material transaction; or (v) made any accrual or arrangement for payment of bonuses or special compensation of any kind or any severance or termination pay to any present or former officer or employee;
(iic) make The Company has not (i) borrowed or agreed to borrow any salefunds or incurred, assignmentor become subject to, transfer, abandonment any material obligation or other conveyance of the Assets liability (absolute or any part thereof, contingent) except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value liabilities incurred in the ordinary course of business consistent with past practice;
business; (iiiii) subject paid any of the Assets, material obligation or any part thereof, to any Lien liability (absolute or suffer such to exist, contingent) other than such Liens as may arise current liabilities reflected in or shown on the most recent MNXU balance sheet, and current liabilities incurred since that date in the ordinary course of business consistent with past practice by operation of Law and that do not and will notbusiness; (iii) sold or transferred, individually or in the aggregateagreed to sell or transfer, have a Material Adverse Effect any material assets, properties, or interfere materially with the userights, operationor canceled, enjoyment or marketability agreed to cancel, any material debts or claims; or (iv) made or permitted any material amendment or termination of any of the Assetscontract, agreement, or license to which it is a party;
(ivd) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase Notwithstanding anything to the contrary in the compensation foregoing, VRIS shall have divested itself of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase all of its assets and have not liabilities on the date of the Closing and all of the business operations of VRIS as described in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation VRIS prospectus shall be deemed, to be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoinghave been discontinued.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Victoria Internet Services Inc)
Ordinary Course. (a) From the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant to Article X, Seller VCAM shall, and shall cause each of the Companies its Subsidiaries to, conduct the Business carry on their respective businesses in the usual, regular and ordinary course consistent in substantially the same manner as heretofore conducted and use its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with past practice. Without the prior written consent of Buyer or except as required or expressly permitted pursuant customers, suppliers, contractors, distributors, licensors, licensees and others having business dealings with them to the terms hereof, end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by ADP and VCAM that this Section 4.2(b) is a material covenant and ADP is relying on VCAM's compliance with the provisions of this covenant between the date hereof and the Closing Date, Seller shall notDate for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, and shall not permit except as otherwise required by law, neither VCAM nor any of the Companies to, with respect to the Businessits Subsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any material change other distributions in respect of, any of its capital stock (except dividends and distributions by a direct or indirect wholly owned Subsidiary of VCAM to its parent), (y) split, combine or reclassify any of its capital stock or issue or authorize the conduct issuance of the Business as conducted as any other securities in respect of, in lieu of the Execution Date or enter into in substitution for shares of its capital stock or (z) purchase, redeem or otherwise acquire any material transactionshares of capital stock of VCAM or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) make authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any saleshares of its capital stock or the capital stock of any of its Subsidiaries, assignmentany other voting securities or any securities convertible into, transferor any rights, abandonment warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (x) issuances upon exercise of stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of the VCAM Disclosure Schedule and (y) issuances of up to 70,000 options to acquire shares of VCAM Common Stock at the then-current market price for VCAM Common Stock as of the time of the grant of any such options in accordance with the terms of The Vincam Group, Inc. 1996 Long Term Incentive Plan or The Vincam Group, Inc. 1998 Long Term Incentive Plan;
(iii) except as set forth on Section 4.2(b)(iii) of the VCAM Disclosure Schedule and with respect to annual bonuses made in the ordinary course of business consistent with past practice, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other conveyance employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of VCAM or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of VCAM or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of VCAM or any of its Subsidiaries (in each case, except with respect to employees (other than directors or officers) in the ordinary course of business consistent with past practice);
(iv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary of VCAM;
(v) except as set forth on Section 4.2(b)(v) of the Assets VCAM Disclosure Schedule, sell, lease, license, mortgage or otherwise encumber or subject to any part thereofLien or otherwise dispose of any of its material properties or assets, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions sales or licenses of worn-out or obsolete equipment for fair or reasonable value assets in the ordinary course of business consistent with past practice;
(iiivi) subject except as set forth on Section 4.2(b)(vi) of the VCAM Disclosure Schedule and except for borrowings under credit facilities or other agreements filed as exhibits to the VCAM SEC Documents, incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of VCAM or any of the Assetsits Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person, or make any part thereofloans, to advances or capital contributions to, or investments in, any Lien or suffer such to existother Person, other than to VCAM or any direct or indirect wholly owned Subsidiary of VCAM;
(vii) change any accounting principle used by it, unless required by the SEC or the Financial Accounting Standards Board;
(viii) enter into any transaction or series of transactions with any Affiliate of VCAM (other than a wholly owned Subsidiary of VCAM) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to VCAM or such Liens Subsidiary as may arise in would be obtainable by VCAM or such Subsidiary at the ordinary course time of business consistent such transaction with past practice by operation a Person that is not an Affiliate of Law and that do not and will notVCAM; and
(ix) enter into or amend, individually modify, supplement or waive any material provision of any contract, agreement or arrangement with any client or potential client if, in the aggregate, have a Material Adverse Effect the terms of such contracts, agreements or interfere arrangements as entered into or so amended, modified, supplemented or waived differ in any materially with adverse respects from the use, operation, enjoyment or marketability terms set forth in the forms of any client contracts attached to Section 4.2(b)(ix) of the Assets;
(iv) enter into any new (VCAM Disclosure Schedule or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, or hire any new employees in respect of the Business; provided that the hiring of employees for the positions listed on Schedule 6.1(a)(iv) hereto or any comparable positions without limitation shall be deemed, to would not otherwise be in the ordinary course of business consistent with past practice;
(v) make or commit to make any capital expenditure in excess of five thousand dollars ($5,000);
(vi) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) take any other action that would cause any of the representations and warranties made by Seller in any of the Transaction Documents not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoingVCAM's business.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practice; and
(v) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companies.
Appears in 1 contract
Ordinary Course. Prior to the Closing, except as contemplated by this Agreement, unless USD has consented in writing thereto, STM agrees to:
(a) From conduct its operations according to its ordinary and usual course of business;
(b) use its best efforts to preserve intact its respective business organizations and goodwill, keep available the services of its officers, directors and employees and maintain satisfactory relationships with those persons having business relationships with it;
(c) confer on a regular basis with one or more representatives of USD to report operational matters of materiality and any proposals to engage in any material transactions;
(d) not propose, adopt, or authorize any amendment to any of its organizational documents;
(e) not authorize, issue, grant, award, transfer, purchase, retire or redeem any capital stock, or effect any stock split, combination, recapitalization or otherwise change its capitalization as it existed on the date hereof and until the earlier of the Closing Date or the termination of this Agreement pursuant Agreement;
(f) to Article Xpay debts and taxes when due (subject to good faith disputes over such debts or taxes) and to pay or perform other obligations when due;
(g) not declare, Seller shallset aside or pay any dividend or distribution payable in cash, and shall cause each of the Companies to, conduct the Business in the ordinary course consistent with past practice. Without the prior written consent of Buyer stock or except as required or expressly permitted pursuant to the terms hereof, between the date hereof and the Closing Date, Seller shall not, and shall not permit any of the Companies to, property with respect to the Business:shares of its capital stock;
(h) not authorize, recommend or propose, or announce an intention to propose, any transaction, or enter into any agreement or arrangement with any other party, that could have a material adverse effect on its business condition;
(i) make any material change in the conduct of the Business as conducted as of the Execution Date or enter into any material transaction;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Assets or any part thereof, except transactions pursuant to existing contracts set forth in the Schedules hereto and dispositions of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Assets, or any part thereof, to any Lien or suffer such to exist, other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of Law and that do not and will not, individually or in the aggregate, have a Material Adverse Effect or interfere materially with the use, operation, enjoyment or marketability of any of the Assets;
(iv) enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any Employee Benefit Plan), grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or in the ordinary course of business consistent with past practice, not (A) acquire or hire transfer any new employees in respect of the Business; provided that the hiring of employees for the positions listed assets, (B) create or permit to exist any lien on Schedule 6.1(a)(ivany assets, (C) hereto relinquish, forfeit or waive any comparable positions without limitation shall be deemedright under any Material Contract, to be in the ordinary course of business consistent with past practiceor (D) enter into any other material transaction;
(vj) make not incur any indebtedness;
(k) not enter into, amend or commit terminate any Material Contract with any Affiliate of STM or waive any rights under any such Material Contract;
(l) not adopt or amend any plan, arrangement, agreement or contract providing compensation or benefits to, for or on behalf of employees and/or directors of STM, increase compensation or benefits payable to make employees under any capital expenditure plan, arrangement, agreement or contract or otherwise, or pay any bonuses to any employees;
(m) not enter into any transaction involving an obligation in excess of five thousand dollars ($5,000)25,000, except for obligations in connection with this Agreement;
(vin) pay, lend, or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, Seller or any of Seller’s Affiliates;
(vii) fail to maintain in full force and effect insurance which is comparable in amount and scope to the coverage maintained in respect of the Companies in the ordinary course of business consistent with past practices;
(viii) not take any other action that which would cause result in any of the representations and warranties made by Seller in any of the Transaction Documents STM not to be and remain true and correct except as otherwise permitted by this Section 6.1 and except for events or actions described in Section 5.5 subject to the limitations set forth therein;
(ix) make any change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable other than in the ordinary course of business consistent with past practice;
(x) except as set forth on Schedule 6.1(a)(x), make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement relating to Taxes, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, in each case relating to the Companies;
(xi) settle, release or forgive any claim or litigation or waive any right;
(xii) make, enter into, modify, amend in any material respect or terminate any Material Contract; or
(xiii) agree, resolve or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, Seller shall, and shall cause each of the Companies to, with respect to the Business:
(i) continue to maintain, in all material respects, the Assets in accordance with past practice in a condition suitable for their use consistent with past practice;
(ii) file, when due or required, federal, state, foreign and other Tax returns and other reports required to be filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against the Companies, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business of the Companies in the ordinary course of business consistent with past practice;
(iv) keep and maintain the books of account, records and files of the Companies in the ordinary course of business and in accordance with existing practiceas if made at such time; and
(vo) continue to maintain the existing business relationships with the suppliers and customers of the Companies other than relationships not economically beneficial to the Companiesenter into any contract, agreement or arrangment which would constitute a Material Contract hereunder.
Appears in 1 contract