Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;
Appears in 3 contracts
Samples: Securities Purchase Agreement (Terfin International LTD), Securities Purchase Agreement (Three Cities Offshore Ii Cv), Securities Purchase Agreement (Three Cities Fund Ii Lp)
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date 22 hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;
Appears in 1 contract
Samples: Securities Purchase Agreement (Family Bargain Corp)
Pre-Closing Activities. From (a) Except as otherwise permitted or required by this Agreement, prior to the Closing Date, Parent and Seller covenant that Parent and Seller shall not without the consent of REG and Buyer:
(i) engage in any practice, take any action, or enter into any transaction outside the ordinary course of business consistent with the past practices of Seller;
(ii) amend the Organizational Documents of Seller;
(iii) (1) grant any increase in the aggregate compensation of officers and directors of Seller or make any increase in the compensation of employees of Seller outside the ordinary course of business consistent with past practice of Seller, except as required by any contract or agreement existing on Effective Date, (2) grant any bonus to any employee, director or consultant of Seller, except as required by any contract or agreement existing on the Effective Date, or (3) enter into any retention, deferred compensation, bonus or other incentive compensation, profit sharing, option, equity purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan for the benefit of the officers, directors, and/or employees of Seller;
(iv) subject any of the Real Property or Seller Assets (whether tangible or intangible) to any Encumbrances, except for Permitted Liens;
(v) acquire any properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the Real Property or Seller Assets;
(vi) enter into or agree to any construction agreement or change orders with respect to any construction, engineering or similar agreement or make any changes in the Facility;
(vii) hire or terminate any employee, consultant or independent contractor of Seller; or
(viii) agree or commit to do any of the foregoing.
(b) Except as otherwise permitted or required by this Agreement or as consented to by REG and Buyer, from and after the date of this Agreement until and up to and including the Initial ClosingClosing Date, each Parent and Seller covenant and agree that Seller will:
(i) perform all of Seller’s obligations under the Company Contracts, including the payment of all payments as and when they are due;
(ii) maintain its assets and properties in existing repair in accordance with past practices; and
(iii) pay and discharge all costs and expenses of carrying on its operations and of maintaining and operating its assets and properties as they become due and pay and discharge any such costs and expenses which at the Purchasers shall act with date hereof are past due, unless contested in good faith towards, and shall use its reasonable efforts to consummate, the transactions contemplated faith.
(c) Except as otherwise permitted or required by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject prior to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial ClosingClosing Date, the Company REG and Buyer covenant that REG and Buyer shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, not without the Purchasers' prior written consent: (A) the Company shall not, consent of Parent and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, Seller:
(i) engage in any practice, take any action, or enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in outside the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with the past practice practices of REG except as would not reasonably be expected to have a Buyer Material Adverse Effect;
(ii) amend the Organizational Documents of REG; or
(iii) agree or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration commit to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or do any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;foregoing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Renewable Energy Group, Inc.)
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except Except as otherwise provided herein permitted, required or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6set forth on Schedule 8.2, without until the Purchasers' prior written consent: (A) earlier of the Closing Date or the termination of this Agreement in accordance with the provisions hereof, the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, to (i) enter into any loan agreement or other agreement pursuant to which operate their respective businesses in the Company or such Subsidiary incurs indebtedness for borrowed money in excess Ordinary Course of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or Business, (ii) amend any such existing agreement (other than use commercially reasonable efforts to increase the amount available for borrowing under preserve intact their respective businesses and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall notrelationships with customers, suppliers, distributors, brokers, employees, and shall cause each of its Subsidiaries not toother Persons having business relationships with them and (iii) maintain their respective assets and properties in good operating order and condition, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) reasonable wear and tear excepted, in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company manner consistent with past practice practice. Without limiting the foregoing, except as otherwise expressly permitted by this Agreement or as set forth on Schedule 8.2, from the date hereof to the Closing Date or the termination of this Agreement in accordance with the Separation Agreementprovisions hereof, the Company and the Company Subsidiaries shall not:
(a) issue or grant any equity securities or any subscriptions, and shall cause each of its Subsidiaries not towarrants, acquire any assets options or other agreements or rights of any other Person kind whatsoever to purchase or Persons otherwise receive or acquire be issued any equityequity securities or any securities or obligations of any kind convertible into, partnership or other interests in exercisable or exchangeable for, any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness equity securities of the Company or any of the Subsidiaries Company Subsidiaries, or permit the exercise of any shares of capital Stock Options by the holders thereof;
(b) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(c) amend the Organizational Documents of the Company or any Company Subsidiary;
(d) (i) grant any increase in the salary, wage or other compensation payable to any current or former officers, directors, employees, consultants, and/or other service providers of the Company or any Company Subsidiary, including modifying any existing compensation, severance or equity arrangements with any such individuals or declaring or making a payment, commitment or obligation of any kind for the payment by the Company of a bonus or other additional salary or any other compensation whatsoever other than any increases to non-management employees in the Ordinary Course of Business; (Fii) grant any bonus, benefit or other direct or indirect compensation to any current or former officers, directors, employees, consultants and/or other service providers of the Company or take any action to amend or waive any performance or vesting criteria or accelerate the vesting, exercisability or funding under any Benefit Plan; (iii) enter into, adopt or amend any severance, termination, retention, deferred compensation, bonus or other incentive compensation, profit sharing, stock option, stock appreciation right, restricted stock, stock equivalent, stock purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan (including any agreement or plan which would constitute a Benefit Plan if entered into as of the date hereof) for the benefit of any current or former officers, directors, employees, consultants and/or other service providers of the Company or any Company Subsidiary; (iv) enter into any collective bargaining agreement or other agreements with labor organizations; or (v) terminate the employment or services of any officer or conduct any layoffs of a material number of employees;
(e) except for transfers of cash pursuant to normal cash management practices in the transactions contemplated by Ordinary Course of Business or in compliance with the Separation Agreement or as agreed to by the Purchasers in writingCompany's loan agreements, permit the Company shall not, and shall cause each of its Subsidiaries not to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any contract with, any Seller or any Affiliate of any Seller;
(f) enter into any transaction with any directorcontract or commitment that restrains, executive officer restricts, limits or Affiliate (other than any transaction among impedes the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) ability of the Company out or any Company Subsidiary to compete with any Person or conduct any business or line of business in any geographic area;
(g) (i) amend, terminate, or waive compliance with the terms of or breaches under any Material Contract, or (ii) enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been required to be listed on Schedule 6.28 of the ordinary course Disclosure Schedule;
(h) make, revoke or amend any Tax election, change any annual Tax accounting period, adopt or change any method of its businessTax accounting, file any amended Tax Return, settle any Tax claim or assessment, surrender any right to claim a Tax refund, offset or other reduction in Tax liability, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, make a request for a written ruling of a Tax Authority, or enter into a written and legally binding agreement with a Tax Authority;
(i) take any action or omit to take any action that would cause any of the representations or warranties contained herein of the Sellers or the Company not to be true and correct at any time between the date hereof and the Closing Date;
(j) engage in any transaction or take any action, or omit to take any action, as a result of which any of the transactions, occurrences, facts, effects, changes, circumstances, conditions or events listed in Section 6.13 would occur or would be likely to occur; or
(k) authorize, agree or commit to do any of the foregoing. Notwithstanding the foregoing, nothing in this Section 8.2 shall prohibit the Company or any of the Company Subsidiaries from taking any action or omitting to take any action approved in writing by Purchaser. No Seller will have any Liability to any Purchaser Indemnitee with respect to actions taken with the consent of Purchaser under this Section 8.2 prior to Closing, notwithstanding that taking any such action may cause a breach of any representation or warranty in Section 6.13.
Appears in 1 contract
Samples: Stock Purchase Agreement (Church & Dwight Co Inc /De/)
Pre-Closing Activities. From and after Seller shall, from the date of this Agreement until to the Initial ClosingClosing Date, each except as otherwise specifically agreed to in writing by Buyer:
(a) Make no borrowing or hypothecations that would encumber the Property or any part thereof as of the Company date of or after the Closing or incur or agree to incur any liability or obligation of any material nature (absolute or contemplated) which may become an Assumed Liability hereunder except in the ordinary and regular course of Seller's business;
(b) Not modify, amend or cancel any of the Purchasers shall act Contracts, Leases or Permits and Licenses, or enter into any new contracts or leases with good faith towardsany third party, and shall use its reasonable efforts to consummate, the transactions contemplated except on account of a default by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject party (other than Seller) to the fiduciary duties same or the normal expiration of the Board stated term thereof;
(c) Not authorize or make any non-emergency capital expenditure in excess of Directors five thousand Dollars ($5,000.00);
(d) Not increase the salary of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries any employee except in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties andof business, except as otherwise provided herein or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (pay or agree to commit to) pay any change in the certificate of incorporation bonus to any employee or by-laws of the Company or adopt any of such Subsidiaries; (B) the Company shall notBenefit Plan, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than except in the ordinary course of business (and except where required by law);
(e) Not sell, assign, lease or otherwise transfer or dispose of, or enter into any agreement to sell, assign, lease or transfer, any property or equipment of Seller relating to the Facility or its business, except in the normal course of business;
(f) Not merge or consolidate or agree to merge or consolidate with or into any other entity;
(g) Make such repairs, restorations and replacements as may be necessary or appropriate to keep and maintain the Property, Personality and property under the Contracts and Leases in their present physical condition and state of repair and operation as they exist and are operated as of the Company date hereof, reasonable wear and tear excepted;
(h) Keep and maintain any and all insurance for the Assets in full force and effect;
(i) Not enter into any agreements or other arrangements that will or may incur obligations binding upon or against the Assets or Buyer subsequent to the Closing Date;
(j) Comply with and cure all violations of laws, ordinances, rules, regulations, orders, decrees or requirements, whether public or private, affecting the Assets;
(k) Timely pay, satisfy and discharge any amount of principal, interest, premium or penalty due or becoming due under any obligation with respect to the Assets and all other bills, charges and sums due or becoming due prior to the Closing Date with respect thereto or otherwise, including but not limited to the discharge of any liens, encumbrances, judgments, taxes, charges, assessments, security interests or chattel mortgages or any other claims now or hereafter imposed against the Assets;
(l) Fully perform and observe all requirements, obligations and provisions of the Contracts, Leases, Permits and Licenses and any other agreements and arrangements for or relating to the Assets or operation, occupancy or maintenance thereof and promptly cure any violation, default or breach by Seller thereunder;
(m) Not undertake any courses of conduct or action, or fail to do so, inconsistent with the requirements of this Agreement and Seller's obligations, covenants, representations and warranties herein provided, or that may prevent or hinder Buyer from satisfying its conditions precedent hereof, consummating the purchase of the Assets hereunder or fully realizing the acquisition of the Assets as hereby intended;
(n) Use Seller's reasonable efforts to maintain present employees and maintain Seller's relationship with suppliers, residents and others having business relations with the Facility;
(o) Permit Buyer to make offers of employment to work at the Facility after the Closing to any of Seller's personnel who work at the Facility, which personnel shall be allowed to accept or reject such offers without penalty;
(p) Permit Buyer and its Subsidiaries); authorized representatives (Dincluding without limitation, any attorneys or accountants designated by Buyer) other than in to have access during normal daylight business hours upon prior notice to Seller to all properties, records and documents with respect to the ordinary course Assets for the purpose of business of the Company consistent with past practice or making such inspections and examinations as set forth in the Separation Agreement, the Company Buyer shall notdeem advisable, and shall cause each of its Subsidiaries not to, acquire any assets of any furnish to Buyer and such representatives financial and other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where information with respect to the total consideration Assets as Buyer may from time to be paid by the Company time request. Buyer and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company representative shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or unduly interfere with Seller's normal business operations in effectuating any of the Subsidiaries or any shares foregoing. In the event of capital stock termination of this Agreement, Buyer shall return to Seller all such information and documents including copies thereof made by Buyer;
(q) Permit Buyer to conduct architectural, environmental and engineering inspections of the CompanyProperty at reasonable times and upon prior notice to Seller; and
(Fr) except for the transactions contemplated by the Separation Agreement or as agreed Permit Buyer to by the Purchasers in writing, the Company shall not, validate Seller's inventory and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;if Buyer deems necessary to conduct a physical inventory.
Appears in 1 contract
Samples: Sale Agreement (Balanced Care Corp)
Pre-Closing Activities. From and after the date of this ----------------------- Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable best efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable its best efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, and to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6Agreement, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate Certificate of incorporation Incorporation or byits By-laws Laws (except for the Certificate of the Company Amendment) or any of such Subsidiariesshareholders rights plan, poison pill or similar arrangement; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other financing agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or ), (ii) amend or terminate any such existing agreement (except as set forth in the Disclosure Letter), (iii) incur any indebtedness other than (a) seasonal borrowings under the Credit Agreement, (b) other indebtedness incurred in the ordinary course of business consistent with past practice in an aggregate amount not to increase exceed $1,000,000 and (c) such indebtedness as is set forth in the amount available for borrowing under and Disclosure Letter, (iv) amend or terminate the terms Alliance Agreement or any agreement entered into or related to such alliance with Pillsbury (except in the manner contemplated in the Disclosure Letter), (v) issue stock or any other shares of capital securities except pursuant to the operation of the GT Credit Facility and Seneca Foods Corporation Employees' Savings Plan, as in effect on the FINOVA Facility up date hereof, or (vi) initiate, solicit or encourage any inquiries or proposals or offers to a maximum purchase any of $50 million)its securities by any third party; (C) the Company shall not, and shall cause each of its Subsidiaries not to, enter into any other material agreements, commitments or contracts other than in the ordinary course of business consistent with past practice, or otherwise make any material change in any existing agreement, commitment or arrangement other than in the ordinary course of business consistent with past practice; (D) the Company shall not, and shall cause each of its Subsidiaries not to, merge, consolidate or otherwise combine with any Person or sell or otherwise transfer any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (transactions other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than immaterial asset sales in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, practice; (E) the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons (other than in the ordinary course of business of the Company consistent with past practice) or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration transactions other than any transactions or series of related transactions in an aggregate amount not to be paid by the Company and its Subsidiaries exceeds exceed $100,000500,000; (EF) except for required payments repayments of seasonal borrowings under the FINOVA Credit Facility or the GT Credit FacilityAgreement and scheduled payments of indebtedness, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the CompanyCompany or to declare or pay any dividends on any shares of capital stock except for aggregate semiannual dividends of $11,590.50 on the outstanding shares of the 6% Preferred Stock, Series A Preferred Stock and Series B Preferred Stock; (FG) except for as set forth in the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writingDisclosure Letter, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out other than any transaction (or series of related transactions) not involving amounts in excess of $60,000 and conducted on an arm's-length basis in the ordinary course of business of the Company; (H) the Company shall not, and shall cause each of its business;Subsidiaries not to, (i) grant to any employee, officer or director, any option, warrant or other subscription or purchase right with respect to shares of capital stock other than pursuant to the Seneca Foods Corporation Employees' Savings Plan in effect on the date hereof; (ii) grant to any employee any increase in salary or other remuneration not consistent with past practices, grant to any officer or director any increase in salary, bonus incentive compensation, service award or other remuneration or grant to any employee, officer or director any increase in severance or termination pay; (iii) enter into any employment contract or severance arrangement with any officer or director; or (iv) adopt or amend in any respect any of its employee benefit plans except as required by law; (I) the Company shall, and shall cause each of its Subsidiaries to, not take or agree to commit to take any action that would make any representation or warranty of the Company hereunder required to be true at and as of the Closing as a condition to the Purchasers' obligations to consummate the
Appears in 1 contract
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers Investor shall act with good faith towardstowards the other, and shall use its all reasonable efforts to consummate, consummate the transactions contemplated by this Agreement, and neither the Company nor the Purchasers Investor will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course consistent with past practice and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties parties, and, except as otherwise provided herein or in the Separation Agreementherein, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6Agreement, without the Purchasers' Investor's prior written consent: (A) consent the Company shall not, and shall cause ensure that each of its Subsidiaries not to, does not:
(a) adopt or propose (or agree to commit to) any change in the its certificate of incorporation or byBy-laws Laws, except as contemplated hereby or as required to effect the transactions hereunder;
(b) take any action that would make any representation or warranty of the Company hereunder required to be true at and as of the Closing as a condition to the Investor's obligations to consummate the transactions contemplated hereby inaccurate at the Closing;
(c) issue, sell, pledge or encumber any capital stock or other securities, except (i) pursuant to Options or Bank Warrants outstanding on the date hereof, (ii) pursuant to options granted automatically under the Company's 1994 Non-Employee Directors Stock Option Plan or 1996 Non-Employee Directors Stock Plan, and Common Stock issued to directors in lieu of cash fees, (iii) for the issuance of up to $10,000,000 aggregate liquidation preference of Series B Preferred Stock (and up to 2,000,000 warrants to purchase Common Stock in connection therewith) to all of the stockholders of the Company who subscribe for such shares pursuant to a rights offering by the Company registered under the Act, the terms of which shall be reasonably acceptable to the Investor (the "Rights Offering") or (iv) for the issuance of up to $10,000,000 aggregate liquidation preference of Series B Preferred Stock (and up to 2,000,000 warrants to purchase Common Stock in connection therewith) in connection with the issuance of up to $10,000,000 in fair market value of Common Stock to certain purchasers pursuant to a private placement under Section 4(2) of the Act, the terms of which shall be acceptable to the Investor (the "Private Placement"); PROVIDED that the net proceeds of the issuance and sale of such Subsidiaries; (B) Series B Preferred Stock, such warrants and Common Stock shall be used for working capital purposes, including the payment of existing indebtedness of the Company shall not(which does not include repurchasing securities of the Company) or for investment projects of the Company in accordance with the provisions of this Agreement;
(d) make any material change in its accounting methods, and shall cause each of its Subsidiaries not toprinciples or practices except as may be required by law or applicable accounting standards;
(e) except as described in the Approved Business Plan for 1997, (i) grant to any employee any material increase in salary or other remuneration or any increase in severance or termination pay not consistent with past practice; (ii) grant or approve any general increase in salaries of all or any class of, or a substantial portion of, its employees not consistent with past practice; (iii) pay or award any material bonus, incentive, compensation, service award or other like benefit for or to the credit of any employee except in accordance with written policy or consistent with past practice; (iv) -41- enter into any material employment contract or severance arrangement with any employee or adopt or amend in any material respect any of its employee benefit plans; or (v) change in any material respect the compensation (whether in respect of terms or method) of its agents;
(i) except as permitted by the Note Agreement, enter into or assume any loan agreement or other agreement Instrument pursuant to which the Company or such Subsidiary incurs indebtedness Indebtedness for borrowed money in excess of $250,000 (other than any such agreement Instrument among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend request or agree to any such material amendment or supplement to or waiver, termination or modification of any material existing agreement Instrument (other than Instruments relating to increase the amount available for borrowing under and amend the terms Indebtedness);
(g) declare, pay, set aside or make any dividend or distribution (payable in cash, stock, property or obligations) on, or combine, subdivide or reclassify, any shares of the GT Credit Facility and the FINOVA Facility up to a maximum any class of $50 million); (C) the Company shall not, and shall cause each its capital stock or of its Subsidiaries (now or hereafter outstanding), or apply any of its funds, property or assets to the purchase, redemption, sinking fund or other retirement of any shares of any class of its capital stock or of its Subsidiaries (now or hereafter out standing); PROVIDED, HOWEVER, that this provision shall not toapply in respect of the liquidation or dissolution of one or more Excluded Subsidiaries; or
(h) agree, sell commit or resolve to do any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;foregoing.
Appears in 1 contract
Samples: Investment Agreement (Atlantic Gulf Communities Corp)
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except Except as otherwise provided herein permitted or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated required by this Agreement or as permitted by Section 6.6set forth on Schedule 7.2, prior to the Closing Date, Sellers shall cause the Companies and the Company Subsidiary not to take any of the following actions, without the Purchasers' prior written Purchaser’s consent: , such consent not to be unreasonably withheld or delayed:
(Aa) issue or grant any equity securities or any subscriptions, warrants, options or other agreements or rights of any kind whatsoever to purchase or otherwise receive or be issued any equity securities or any securities or obligations of any kind convertible into, or exercisable or exchangeable for, any equity securities of a Company or the Company Subsidiary;
(b) effect any recapitalization, reclassification or like change in the capitalization of any of the Companies or the Company Subsidiary; 42
(c) amend the Organizational Documents of any of the Companies or the Company Subsidiary;
(d) enter into, modify or amend any Material Contract other than in the Ordinary Course of Business, notice of which shall not, and shall cause each of its Subsidiaries not be provided to Purchaser;
(e) (i) grant any bonuses to or increase the base wage or salary payable to, adopt or propose any other components of compensation and employee benefits of, any officer, manager and/or employee of the Companies or the Company Subsidiary, other than grants or increases in the Ordinary Course of Business, (ii) except for amounts included in Company Transaction Expenses, grant or agree to commit provide any retention, severance or termination pay to, or enter into, modify or amend any offer letter, employment, bonus, change of control, severance or consulting agreement with any officer, manager and/or employee of the Companies or the Company Subsidiary;
(f) enter into, modify or amend (including any increase in benefits) any change deferred compensation, bonus or other incentive compensation, profit sharing, equity purchase or award, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan for the benefit of any officer, manager and/or employee of the Companies or the Company Subsidiary;
(g) subject any of the properties or assets (whether tangible or intangible) of any of the Companies or the Company Subsidiary to any Lien other than Permitted Liens;
(h) acquire any properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the properties or assets of the Companies or the Company Subsidiary except (i) in the certificate Ordinary Course of incorporation Business or by-laws of (ii) transactions less than or equal to $650,000 for any individual transaction or $1,250,000 for all transactions in the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, aggregate;
(i) enter into any loan agreement commitment for capital expenditures of any of the Companies or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 650,000 for any individual commitment or $3,000,000 for all commitments in the aggregate;
(other than j) enter into any such agreement among contract or commitment which materially restricts the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms ability of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets Companies or the Company Subsidiary to compete with, or conduct, any business or line of business in any geographic area;
(k) waive or consent to any extension of any limitation or assessment period or statute of limitations with respect to the assessment or collection of Taxes;
(l) make, change or rescind any Tax election, amend any Return or take any position on any Return, take any action, omit to take any action or enter into any other transaction that, in each case, would have the effect of materially increasing the Tax liability of Purchaser in respect of any Post-Closing Tax Period;
(m) enter into, modify or terminate any organized labor agreement or collective bargaining agreement or, through negotiations or otherwise, make any commitment or incur any Liability to any labor organization;
(n) issue additional letters of credit outside of the Company or such Subsidiaries Ordinary Course of Business; or
(or the securities of entities holding the sameo) in one transaction or a series of related transactions, where the total consideration agree to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or do any of the Subsidiaries foregoing. Notwithstanding the foregoing, nothing in this Section 7.2 shall require Sellers to prohibit any of the Companies or the Company Subsidiary from taking any action or omitting to take any action required by this Agreement or any shares other contract or agreement to which a Company or the Company Subsidiary is a party or otherwise approved in writing by Purchaser, which approval will not be unreasonably withheld. It is understood and agreed that (x) Sellers shall cause the transfer or sweep of capital stock Cash at any time immediately prior to the Closing, with the intention that the Closing Cash be as close to zero as reasonably practicable as of immediately prior to the Closing and (y) Sellers shall be permitted to repay or terminate any Indebtedness of any of the Company; (F) except for the transactions contemplated by the Separation Agreement Companies or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each Subsidiary owed to any of its Subsidiaries not to, enter into any transaction with any director, executive officer the Companies or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;Subsidiary.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Air Transport Services Group, Inc.)
Pre-Closing Activities. From (a) Except as otherwise permitted or required by this Agreement, prior to the Closing Date, Parent and Seller covenant that Parent and Seller shall not, without the consent of REG and Buyer:
(i) engage in any practice, take any action, or enter into any transaction outside the ordinary course of business consistent with the past practices of Seller;
(ii) amend the Organizational Documents of Seller;
(iii) (1) grant any increase in the aggregate compensation of officers and governors of Seller or make any increase in the compensation of employees of Seller outside the ordinary course of business consistent with past practice of Seller, except as required by any contract or agreement existing on the Effective Date, (2) grant any bonus to any employee, governor or consultant of Seller, except as required by any contract or agreement existing on the Effective Date, or (3) enter into any retention, deferred compensation, bonus or other incentive compensation, profit sharing, option, equity purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan for the benefit of the officers, governors, and/or employees of Seller;
(iv) subject any of the Real Property or Purchased Assets (whether tangible or intangible) to any Encumbrances, except for Permitted Liens;
(v) acquire any properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the Real Property or Purchased Assets;
(vi) enter into or agree to any construction agreement or change orders with respect to any construction, engineering or similar agreement or make any changes in the Facility;
(vii) hire or terminate any employee, consultant or independent contractor of Seller; or
(viii) agree or commit to do any of the foregoing.
(b) Except as otherwise permitted or required by this Agreement or as consented to by REG and Buyer, from and after the date of this Agreement until and up to and including the Initial ClosingClosing Date, each Parent and Seller covenant and agree that Seller will:
(i) perform all of Seller’s obligations under the Company Assumed Contracts, including the payment of all payments as and the Purchasers shall act when they are due;
(ii) maintain its assets and properties in existing repair in accordance with good faith towards, past practices; and
(iii) pay and shall use discharge all costs and expenses of carrying on its reasonable efforts to consummate, the transactions contemplated by this Agreement, operations and neither the Company nor the Purchasers will take of maintaining and operating its assets and properties as they become due and pay and discharge any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From such costs and expenses which at the date hereof until the Initial Closingare past due, the Company shall conduct the business of it and its Subsidiaries unless contested in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;good faith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Renewable Energy Group, Inc.)
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers shall act with good faith towards, and shall use its reasonable best efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable its best efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein or in the Separation Agreement, and to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6Agreement, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) any change in the certificate Certificate of incorporation Incorporation or byits By-laws Laws (except for the Certificate of the Company Amendment) or any of such Subsidiariesshareholders rights plan, poison pill or similar arrangement; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other financing agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money in excess of $250,000 (other than any such agreement among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or ), (ii) amend or terminate any such existing agreement (except as set forth in the Disclosure Letter), (iii) incur any indebtedness other than (a) seasonal borrowings under the Credit Agreement, (b) other indebtedness incurred in the ordinary course of business consistent with past practice in an aggregate amount not to increase exceed $1,000,000 and (c) such indebtedness as is set forth in the amount available for borrowing under and Disclosure Letter, (iv) amend or terminate the terms Alliance Agreement or any agreement entered into or related to such alliance with Pillsbury (except in the manner contemplated in the Disclosure Letter), (v) issue stock or any other shares of capital securities except pursuant to the operation of the GT Credit Facility and Seneca Foods Corporation Employees' Savings Plan, as in effect on the FINOVA Facility up date hereof, or (vi) initiate, solicit or encourage any inquiries or proposals or offers to a maximum purchase any of $50 million)its securities by any third party; (C) the Company shall not, and shall cause each of its Subsidiaries not to, enter into any other material agreements, commitments or contracts other than in the ordinary course of business consistent with past practice, or otherwise make any material change in any existing agreement, commitment or arrangement other than in the ordinary course of business consistent with past practice; (D) the Company shall not, and shall cause each of its Subsidiaries not to, merge, consolidate or otherwise combine with any Person or sell or otherwise transfer any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (transactions other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than immaterial asset sales in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, practice; (E) the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons (other than in the ordinary course of business of the Company consistent with past practice) or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration transactions other than any transactions or series of related transactions in an aggregate amount not to be paid by the Company and its Subsidiaries exceeds exceed $100,000500,000; (EF) except for required payments repayments of seasonal borrowings under the FINOVA Credit Facility or the GT Credit FacilityAgreement and scheduled payments of indebtedness, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the CompanyCompany or to declare or pay any dividends on any shares of capital stock except for aggregate semiannual dividends of $11,590.50 on the outstanding shares of the 6% Preferred Stock, Series A Preferred Stock and Series B Preferred Stock; (FG) except for as set forth in the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writingDisclosure Letter, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out other than any transaction (or series of related transactions) not involving amounts in excess of $60,000 and conducted on an arm's-length basis in the ordinary course of business of the Company; (H) the Company shall not, and shall cause each of its business;Subsidiaries not to, (i) grant to any employee, officer or director, any option, warrant or other subscription or purchase right with respect to shares of capital stock other than pursuant to the Seneca Foods Corporation Employees' Savings Plan in effect on the date hereof; (ii) grant to any employee any increase in salary or other remuneration not consistent with past practices, grant to any officer or director any increase in salary, bonus incentive compensation, service award or other remuneration or grant to any employee, officer or director any increase in severance or termination pay; (iii) enter into any employment contract or severance arrangement with any officer or director; or (iv) adopt or amend in any respect any of its employee benefit plans except as required by law; (I) the Company shall, and shall cause each of its Subsidiaries to, not take or agree to commit to take any action that would make any representation or warranty of the Company hereunder required to be true at and as of the Closing as a condition to the Purchasers' obligations to consummate the
Appears in 1 contract
Pre-Closing Activities. From and after the date of this Agreement until the Initial Closing, each of the Company and the Purchasers Investor shall act with good faith towardstowards the other, and shall use its all reasonable efforts to consummate, consummate the transactions contemplated by this Agreement, and neither the Company nor the Purchasers Investor will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course consistent with past practice and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties parties, and, except as otherwise provided herein or in the Separation Agreementherein, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6Agreement, without the Purchasers' Investor's prior written consent: (A) consent the Company shall not, and shall cause ensure that each of its Subsidiaries not to, does not:
(a) adopt or propose (or agree to commit to) any change in the its certificate of incorporation or byBy-laws Laws, except as contemplated hereby or as required to effect the transactions hereunder;
(b) take any action that would make any representation or warranty of the Company hereunder required to be true at and as of the Closing as a condition to the Investor's obligations to consummate the transactions contemplated hereby inaccurate at the Closing;
(c) issue, sell, pledge or encumber any capital stock or other securities, except (i) pursuant to Options or Bank Warrants outstanding on the date hereof, (ii) pursuant to options granted automatically under the Company's 1994 Non-Employee Directors Stock Option Plan or 1996 Non-Employee Directors Stock Plan, and Common Stock issued to directors in lieu of cash fees, or (iii) for the issuance of up to $10,000,000 aggregate liquidation preference of Series B Preferred Stock to stockholders of the Company who subscribe for such shares pursuant to a rights offering by the Company, the terms of which shall be reasonably acceptable to the Investor; provided that the net proceeds of the issuance and sale of such Subsidiaries; Series B Preferred Stock shall be used for working capital purposes (Bwhich does not include repurchasing securities of the Company) or for investment projects of the Company shall notin accordance with the provisions of this Agreement;
(d) make any material change in its accounting methods, and shall cause each of its Subsidiaries not toprinciples or practices except as may be required by law or applicable accounting standards;
(e) except as described in the Approved Business Plan for 1997, (i) grant to any employee any material increase in salary or other remuneration or any increase in severance or termination pay not consistent with past practice; (ii) grant or approve any general increase in salaries of all or any class of, or a substantial portion of, its employees not consistent with past practice; (iii) pay or award any material bonus, incentive, compensation, service award or other like benefit for or to the credit of any employee except in accordance with written policy or consistent with past practice; (iv) enter into any material employment contract or severance arrangement with any employee or adopt or amend in any material respect any of its employee benefit plans; or (v) change in any material respect the compensation (whether in respect of terms or method) of its agents;
(i) except as permitted by the Note Agreement, enter into or assume any loan agreement or other agreement Instrument pursuant to which the Company or such Subsidiary incurs indebtedness Indebtedness for borrowed money in excess of $250,000 (other than any such agreement Instrument among the Company and its wholly owned Subsidiaries or among the Company's wholly owned Subsidiaries) or (ii) amend request or agree to any such material amendment or supplement to or waiver, termination or modification of any material existing agreement Instrument (other than Instruments relating to increase the amount available for borrowing under and amend the terms Indebtedness);
(g) declare, pay, set aside or make any dividend or distribution (payable in cash, stock, property or obligations) on, or combine, subdivide or reclassify, any shares of the GT Credit Facility and the FINOVA Facility up to a maximum any class of $50 million); (C) the Company shall not, and shall cause each its capital stock or of its Subsidiaries (now or hereafter outstanding), or apply any of its funds, property or assets to the purchase, redemption, sinking fund or other retirement of any shares of any class of its capital stock or of its Subsidiaries (now or hereafter outstanding); provided, however, that this provision shall not toapply in respect of the liquidation or dissolution of one or more Excluded Subsidiaries; or
(h) agree, sell commit or resolve to do any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;foregoing.
Appears in 1 contract
Samples: Investment Agreement (Atlantic Gulf Communities Corp)
Pre-Closing Activities. From Each of YSI and after the Seller covenants and agrees that from the date of this Agreement until the Initial ClosingClosing Date, each of the Company and the Purchasers except as otherwise specifically agreed to in writing by Purchaser (which agreement shall act with good faith towardsnot be unreasonably withheld), and shall use its reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Purchasers will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement, subject to the fiduciary duties of the Board of Directors of the Company under Delaware law. From the date hereof until the Initial Closing, the Company shall conduct the business of it Subsidiaries shall:
(a) incur or agree to incur any material liability or obligation (absolute or contingent) except for trade payable and its Subsidiaries contractual obligations incurred in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except as otherwise provided herein of business;
(b) authorize or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated by this Agreement or as permitted by Section 6.6, without the Purchasers' prior written consent: (A) the Company shall not, and shall cause each of its Subsidiaries not to, adopt or propose (or agree to commit to) make any change in the certificate of incorporation or by-laws of the Company or any of such Subsidiaries; (B) the Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any loan agreement or other agreement pursuant to which the Company or such Subsidiary incurs indebtedness for borrowed money capital expenditure in excess of $250,000 25,000.00, individually, or $150,000.00, in the aggregate;
(c) create or incur any mortgage, lien, charge or encumbrance on any of its assets other than any such agreement among purchase money security interests and the Company and its wholly owned Subsidiaries interests of lessors of personal property incurred or among created in connection with the Company's wholly owned Subsidiariesleasing by it of personal property in the ordinary course of business;
(d) or (ii) amend any such existing agreement (other than to increase the amount available for borrowing under and amend salary of any employee except pursuant to written employment agreements which have been disclosed to the terms of the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company Purchaser or such Subsidiaries (or the securities of entities holding the same) in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than otherwise in the ordinary course of business of consistent in timing and amount with past practices, or pay or agree to pay any bonus to any employee except pursuant to written employment agreements which have been disclosed to the Company and its Subsidiaries); (D) other than Purchaser or otherwise in the ordinary course of business of the Company consistent in timing and amount with past practice practices or as set forth adopt any new Employee Benefit Plan (except where required by law);
(e) amend, alter or terminate any agreement to which it is a party except in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the Company) of the Company out of the ordinary course of its business;
(f) sell, assign, lease or otherwise transfer or dispose of any of its property or equipment or its businesses, except in the normal course of business and with comparable replacement therefor except as expressly contemplated by this Agreement; or
(g) merge or consolidate or agree to merge or consolidate with or into any other entity; and the Company and each of the Subsidiaries, as the case may be, shall:
(a) maintain in effect the insurance coverage referred to in Section 2.8;
(b) permit Purchaser and its authorized representatives (including, without limitation, any attorneys and accountants designated by Purchaser) to have access (at mutually agreeable times during normal daytime business hours upon at least 48 hours' prior notice to the Company) to all properties, records and documents of the Company and the Subsidiaries for the purpose of making such inspections and examinations as Purchaser shall deem desirable, and furnish to Purchaser and such representatives financial and other information with respect to the business and properties of the Company and the Subsidiaries as Purchaser may from time to time reasonably request;
(c) carry on business in substantially the same manner as heretofore conducted (during the preceding one-year period) and not make any material change in personnel, operations, finance, accounting policies, or real or personal property;
(d) maintain its assets and all parts thereof in as good working order and condition as at present, ordinary wear and tear excepted;
(e) perform all obligations under agreements with others in the ordinary course of business;
(f) use its best efforts to retain present employees and medical staff, and maintain relationships with suppliers, patients and others having business relations with it; and
(g) permit Purchaser to validate the inventories of the Subsidiaries and, if Purchaser deems necessary, conduct a physical inventory.
Appears in 1 contract
Samples: Stock Purchase Agreement (Youth Services International Inc)
Pre-Closing Activities. From Each of the Acquired Companies shall, and after the date of this Agreement until the Initial Closing, Seller shall cause each of the Company and Acquired Companies to (i) carry on its business, in the Purchasers shall act Ordinary Course of Business consistent with good faith towards, and shall use its reasonable efforts to consummate, the transactions past practice except as specifically contemplated or required by this Agreement, or as otherwise agreed in writing by the Purchaser (which shall not be unreasonably withheld, conditioned or delayed), (ii) use commercially reasonable efforts to maintain and neither preserve intact the Company nor business, organization, properties, physical facilities and operations of each Acquired Company, keep available the Purchasers will take any action that would prohibit services of the current officers, employees and agents of such Acquired Company, and maintain the relations and goodwill with its suppliers, customers, lessors, licensors, lenders and key employees and advantageous business relationships of such Acquired Company, (iii) give all required notices in connection with, and use its commercially reasonable efforts to obtain all Permits necessary or impair its ability desirable to consummate the transactions contemplated by this Agreement, subject the Agreement and to permit the Purchaser to operate the businesses of the Acquired Companies after the Closing and to cause the other conditions to the fiduciary duties Purchaser’s and the Seller’s obligation to close set forth in Article 7 to be satisfied (including the execution and delivery of all agreements and documents contemplated hereunder to be so executed and delivered) and (iv) take no action which would reasonably be expected to adversely affect or delay its ability to obtain any approvals required to consummate the Board of Directors of the Company under Delaware lawtransactions contemplated hereby. From the date hereof until the Initial Closing, the Company shall conduct the business of it and its Subsidiaries in the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and, except Except as otherwise provided herein permitted or in the Separation Agreement, to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Initial Closing, except as contemplated required by this Agreement or as permitted by Section 6.6set forth on Schedule 6.2, without before the Purchasers' prior written consent: (A) Closing Date the Company Acquired Companies shall not:
(a) issue or grant any capital stock or any subscriptions, and shall cause each warrants, options or other agreements or rights of its Subsidiaries not toany kind whatsoever to purchase or otherwise receive or be issued any capital stock or any securities or obligations of any kind convertible into, adopt or propose exercisable or exchangeable for, any capital stock of any Acquired Company;
(b) engage in any practice, take any action, or agree to commit toenter into any transaction outside the Ordinary Course of Business;
(c) effect any recapitalization, reclassification, stock split or like change in the certificate capitalization of incorporation any Acquired Company;
(d) amend the Organizational Documents of any Acquired Company;
(e) (i) grant any material increase in the compensation of officers and directors of any Acquired Company or by-laws make any material increase in the aggregate compensation of employees of any Acquired Company outside the Ordinary Course of Business, except as required by any contract or agreement existing on the date hereof, (ii) grant any extraordinary bonus to any employee, director or consultant of any Acquired Company, except as required by any contract or agreement existing on the date hereof, or (iii) enter into any retention, deferred compensation, bonus or other incentive compensation, profit sharing, stock option, equity appreciation right, restricted stock, equity equivalent, equity purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan for the benefit of the officers, directors, and/or employees of any Acquired Company;
(f) subject or permit any of the properties or assets (whether tangible or intangible) of any Acquired Company to become subject to any Lien other than Permitted Liens or leases or licenses that do not materially impair the use of the property subject thereto in the Business as currently conducted;
(g) acquire any properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the properties or assets of any Acquired Company except (i) in the Ordinary Course of Business, including the sale or lease of products and equipment to customers, or (ii) transactions less than or equal to $100,000 for any individual transaction or $500,000 for all transactions in the aggregate;
(h) make any, or enter into any commitment for, capital expenditures of any Acquired Company (other than the Medical Capital Expenditures) in excess of $100,000 for any individual commitment and $500,000 for all commitments in the aggregate;
(i) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, permit any Acquired Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any contract with, the Seller or any Affiliate of the Seller or any other Affiliate of any Acquired Company;
(j) enter into any contract or commitment which restricts the ability of any Acquired Company to compete with, or conduct, any business or line of business in any geographic area;
(k) enter into or terminate any Material Contract (other than the expiration of any Material Contract pursuant to its terms);
(l) except for trade debt in the Ordinary Course of Business, incur any Indebtedness that will not be satisfied at Closing, assume, guarantee, endorse or otherwise become responsible for any obligations for borrowed money of any other Person, other than any other Acquired Company, or make any loans or advances to any Person, other than to any other Acquired Company;
(m) change in any material respect any (i) financial accounting policies, practices or procedures, (ii) collections, pricing, origination or credit policies, practices or procedures, or (iii) actuarial, reserving, investment or risk management or other similar practices of the Acquired Companies;
(n) settle any material litigation;
(o) merge with any other Person or permit any other Person to merge into it or consolidate with, or acquire the securities (whether debt or equity, convertible or otherwise) of any other Person;
(p) take any action that is intended or may reasonably be expected to result in any of the representations and warranties set forth in Article 3 of this Agreement being or becoming untrue in any material respect at any time prior to the Closing Date, or in any of the conditions set forth in Article 7 not being satisfied in any material respect or in a material violation of any provision of this Agreement, except, in each case, as may be required by Law;
(q) make or change any Tax election, file any amended Tax Return, enter into any Tax closing agreement, settle any Tax claim or assessment of or relating to any Acquired Company, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment upon or relating to any Acquired Company if such Subsidiaries; election, amendment, agreement, settlement, surrender, consent or other action would reasonably be expected to have the effect of increasing the Tax liability of an Acquired Company for any taxable period beginning on or after the day after the Closing Date unless required by applicable Law;
(Br) the Company shall notfail to use commercially reasonable efforts to preserve, and shall cause each prevent any material degradation in, such Acquired Company’s relationship with its material suppliers, customers and others having material business relations with such Acquired Company; or
(s) agree or commit to do any of its Subsidiaries not tothe foregoing. Notwithstanding the foregoing, (i) enter into nothing in this Section 6.2 shall prohibit any loan agreement Acquired Company from taking any action or other agreement pursuant omitting to which take any action that is required to be taken or that is specifically contemplated by this Agreement (including the Company or such Subsidiary incurs indebtedness for borrowed money in excess transfer of $250,000 (the Transfer Road Property and assignment of the Transfer Road Lease Agreements, any Indebtedness and any GE Mortgage Agreements associated therewith to another Person other than any such agreement among the Company and its wholly owned Subsidiaries or among the Acquired Company's wholly owned Subsidiaries) or otherwise approved by the Purchaser, which approval will not be unreasonably withheld, conditioned or delayed, and (ii) amend any such existing agreement (other than the Purchaser acknowledges that on or prior to increase the amount available for borrowing under and amend Closing Date the terms of Seller may approve certain payments to the GT Credit Facility and the FINOVA Facility up to a maximum of $50 million); (C) the Company shall not, and shall cause each of its Subsidiaries not to, sell any of the assets of the Company or such Subsidiaries (or the securities of entities holding the same) Phantom Stock Holders in one transaction or a series of related transactions, where the total consideration to be received by the Company and its Subsidiaries exceeds $250,000 (other than in the ordinary course of business of the Company and its Subsidiaries); (D) other than in the ordinary course of business of the Company consistent accordance with past practice or as set forth in the Separation Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons, in one transaction or series of related transactions, where the total consideration to be paid by the Company and its Subsidiaries exceeds $100,000; (E) except for required payments under the FINOVA Credit Facility or the GT Credit Facility, the Company shall not, and shall cause each of its Subsidiaries not to, repay, redeem or repurchase any indebtedness of the Company or any of the Subsidiaries or any shares of capital stock of the Company; (F) except for the transactions contemplated by the Separation Agreement or as agreed to by the Purchasers in writing, the Company shall not, and shall cause each of its Subsidiaries not to, enter into any transaction with any director, executive officer or Affiliate (other than any transaction among the Company and its wholly-owned Subsidiaries or among any wholly-owned Subsidiaries of the CompanySection 280G(b)(5) of the Company out Code so that such payment does not constitute a “parachute payment” within the meaning of Section 280G of the ordinary course of its business;Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rti International Metals Inc)
