Restricted Actions. Seller shall not, and shall procure that none of its Affiliates shall cause without prior consent of Buyer (or, if applicable Merger Control Laws do not so permit, prior consultation of Buyer), any of the Cablecom Companies to do any of the following, from the date of this Agreement through to the Closing Date: (a) do anything that would materially interfere with the consummation of the transactions contemplated by this Agreement taken as a whole; (b) execute any contracts or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated by this Agreement taken as a whole; (c) do anything which would have a Material Adverse Effect on the value of the Cablecom Business taken as a whole, unless specifically provided in this Agreement; (d) make any change in the terms of employment of any director, officer or employee of any of the Cablecom Business other than (i) in accordance with existing agreements, collective bargaining arrangements or normal prior practice or (ii) as disclosed in the Disclosed Documents; (e) issue or create any obligation to issue any shares or equity-linked securities; (f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs); (g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreement; (h) alter or amend in any manner the articles of incorporation or organizational regulations of any of the Cablecom Subsidiaries; (i) pay or pre-pay invoices other than consistent with prior business practice; (j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group; (k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries; (l) form, enter into, vary, terminate or withdraw from any partnership, consortium, joint venture or other incorporated association; (m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in the ordinary and normal course of business; (n) make, increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group other than in the ordinary and normal course of business; (o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of business; (p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business; (q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group); (r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes; (s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business; (t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements; (u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business; (v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999; (w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement; (x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date; (y) enter into any interconnection or open network access agreement with any Controlling Shareholder or any third party prior to the Closing Date (other than in accordance with pre-existing arrangements); (z) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsection.
Appears in 1 contract
Restricted Actions. Seller Unless specifically provided in this Agreement or disclosed in the Disclosure Letter, Sellers shall not, and shall procure that none of its Affiliates the DiaMed Companies shall cause not, without prior written consent of Buyer (or, if applicable Merger Control Laws administrative or regulatory laws do not so permit, prior consultation of Buyer), any of the Cablecom Companies ) knowingly do or agree to do any of the following, following from the date of this Agreement through to the Closing Date:
(a) do anything or omit to do anything that would materially interfere with the consummation of the transactions contemplated by this Agreement taken as a wholeAgreement;
(b) execute any contracts do or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated by this Agreement taken as a whole;
(c) omit to do anything which would have a Material Adverse Effect on Effect;
(c) do or omit to do anything outside the value ordinary course of the Cablecom Business taken as a whole, unless specifically provided in this Agreementbusiness;
(d) make any hiring other than in the ordinary course of business or make or material change in to the terms of employment of any directordirector, officer or employee of any of the Cablecom Business DiaMed Companies other than (i) in accordance with existing agreementswritten or oral agreements as summarized in Exhibit 7.2.17, collective bargaining arrangements or normal prior practice or (ii) as disclosed other than in the Disclosed Documentsordinary course of business with regard to other employees than key employees;
(e) issue form, enter into, materially change, terminate or create withdraw from any obligation to issue any shares material partnership, consortium, joint venture or equity-linked securitiesother incorporated association;
(f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs)[**] ;
(g) selldelay payment, encumber or transfer any assets outside of the ordinary change invoicing and normal course of payment terms other than consistent with prior business except as contemplated in this Agreementpractice;
(h) alter or amend in any manner the articles of incorporation or organizational organizational regulations of any of the Cablecom SubsidiariesDiaMed Company;
(i) pay make any declaration or pre-pay invoices setting aside or payment of any dividend or any other than consistent with prior business practicedistribution of profit or any redemption, purchase or other acquisition of any equity securities of DiaMed;
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or increase, reduce or otherwise change the share capital or capital structurecapital, or grant any option or conversion rights on the equity of the DiaMed Companies,
(k) make any loan or loans [**] (excluding the loans to be repaid at Closing pursuant to the agreement mentioned in Section 4.2.2(h)), the total of which exceeds the cap of [**] , it being understood that the loans made in connection with the purchase in 2007 of [**] is excluded for the purposes of the Cablecom Subsidiaries;calculation of the above mentioned cap per month,
(l) formmake any transactions, enter into, vary, terminate acts or withdraw from any partnership, consortium, joint venture or other incorporated association;omissions which were not at arm’s length
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in the ordinary and normal course of business;
sell DiaMed’s own shares (neigene Aktien) make, increase or extend any loan or advance or grant any credit to any person outside as per Section A of the Cablecom Group other than in the ordinary and normal course of business;
(o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of business;
(p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business;
(q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group);
(r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business;
(v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(y) enter into any interconnection or open network access agreement with any Controlling Shareholder or any third party prior to the Closing Date (other than in accordance with pre-existing arrangements);
(z) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsectionPreamble.
Appears in 1 contract
Samples: Share Purchase Agreement (Bio Rad Laboratories Inc)
Restricted Actions. (a) Unless either specifically provided for in this Agreement or contemplated in the Company's budget or business plan, as previously provided to Buyer, subject to changes necessary or advisable in connection with developments in the industry and/or material economic changes, each Seller shall not(in each case to the extent possible through the exercise of his, her or its voting rights and shall procure subject to all applicable legal and regulatory requirements) ensure that none the Company operates its business as a going concern, in the ordinary course of its Affiliates shall cause without business and consistent with prior consent of Buyer (or, if applicable Merger Control Laws do not so permit, prior consultation of Buyer), any of the Cablecom Companies to do any of the following, practice from the date of this Agreement through to and including the Closing Date.
(b) Notwithstanding the foregoing, each Seller shall not, and shall ensure (in each case to the extent possible through the exercise of his, her or its voting rights and subject to all applicable legal and regulatory requirements) that the Company does not take, or does not agree to take, any of the following actions (the Restricted Actions) from the date of this Agreement through to and including the Closing Date:
(ai) do anything or omit to do anything that would materially could interfere with the consummation of the transactions contemplated by this Agreement taken as a whole;
(b) execute any contracts or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated by this Agreement taken as a whole;
(c) do anything which would have a Material Adverse Effect on the value of the Cablecom Business taken as a whole, unless specifically provided in under this Agreement;
(dii) make alter, amend or change the Articles of Association, the Shareholders' Agreement or any change other similar governance documents of the Company, except as contemplated under this Agreement in connection with the exercise of the Options;
(iii) increase or decrease the share capital of the Company, except as contemplated under this Agreement in connection with the exercise of the Options;
(iv) authorize or create (by reclassification or otherwise) any new class or series of shares of the Company;
(v) issue, authorize or create any shares or related securities of the Company to any third party engaged in the terms development and commercialization of employment diabetes devices, including any manufacturer of continuous insulin infusion pumps or continuous glucose monitors;
(vi) redeem or repurchase any shares of the Company;
(vii) declare or pay any dividend or otherwise make a distribution to holders of any directorshares of the Company, officer other than the pre-closing distribution pursuant to Section 3.2.3;
(viii) increase the number of shares subject to issuance under any share plan or employee arrangement for the benefit of any service providers to the Company;
(ix) create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more other subsidiaries) by the Company, or sell, transfer or otherwise dispose of any capital stock of any direct or indirect subsidiary of the Company, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary;
(x) liquidate, dissolve or wind-up the business and affairs of the Company, effect any deemed liquidation event (which shall include a merger or the sale, lease, transfer, exclusive license, or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary or subsidiaries of the Company, of all or substantially all the assets of the Company and its subsidiaries taken as a whole), or consent, agree or commit to any of the Cablecom Business other than (i) in accordance with existing agreementsforegoing without conditioning such consent, collective bargaining arrangements agreement or normal prior practice or (ii) as disclosed in commitment upon obtaining the Disclosed Documentsapproval required by this section;
(exi) issue grant, modify, dispose of or terminate any rights or enter into any agreement (including any license, assignment, Lien) relating to Intellectual Property Rights or otherwise permit any of its rights relating to Intellectual Property Rights to lapse;
(xii) grant, modify, dispose of or terminate any rights or enter into any agreement (including any license, assignment, Lien) relating to the Sigi Patch Pump or otherwise permit any of its rights relating to the Sigi Patch Pump to lapse;
(xiii) enter into any joint venture or partnership or profit-sharing arrangement;
(xiv) create, or authorize the creation of, or issue, or authorize the issuance of any debt security or create any obligation to issue any shares lien or equity-linked securities;
(f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms security interest, other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs);
(g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreement;
(h) alter or amend in any manner the articles of incorporation or organizational regulations of any of the Cablecom Subsidiaries;
(i) pay or pre-pay invoices other than consistent with prior business practice;
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries;
(l) form, enter into, vary, terminate or withdraw from any partnership, consortium, joint venture or other incorporated association;
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than equipment leases in the ordinary and normal course of business;
(nxv) makecreate, assume or increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group Debt other than short term trading indebtedness incurred or arising in the ordinary and normal course of business;
(oxvi) authorize or effect the acquisition or purchase of another entity, business line or assets of another entity or business line;
(xvii) sell, transfer or create any Lien (other than charges arising by operation of Law) on any assets of the Company (including any Intellectual Property of the Company) to or to the benefit of a third party (including a Seller);
(xviii) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance Lien over any of his, her or its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of businessShares;
(pxix) borrow make, increase or extend any money financial loan or incur credit to any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of businessthird party;
(qxx) incorporate enter into, increase or liquidate extend any subsidiary undertaking liability under any guarantee or effect indemnity in favor of any reorganization with respect to such subsidiary (other than the ongoing reorganization third party guaranteeing obligations of the Swiss-German companies Company in excess of the Cablecom Group)CHF 25,000 per item;
(rxxi) change accounting policies or procedures (including for Tax purposes), except as required by applicable Law;
(xxii) initiate, discontinue or settle any litigation or arbitration proceedings (i) where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 25,000 per item, or (three million Swiss Francs), not including value added taxesii) that would reasonably be expected to impose material nonmonetary obligations on the Company;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(uxxiii) enter into, vary, supplement, amend or give notice of termination of any Material Contracts with a total annual income or expenditure of more than CHF 100,000, or amend, waive, terminate any agreement or arrangement with consent to the Seller or termination of any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of businessCompany's rights thereunder;
(v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(yxxiv) enter into any interconnection other Material Contract that cannot be terminated in accordance with its terms (without any compensation being payable) on less than three (3) months' notice or open network access agreement terminate or vary the terms of any such existing Material Contract or material commitment;
(xxv) make or initiate any material changes to employee packages or compensation, other than the Transaction Bonus and the introduction of a supplemental executive pension plan;
(xxvi) make any capital expenditures or commitment thereof in excess of CHF 100,000 in the aggregate or fail to make any capital expenditures set forth in the Company's capital expenditure budget as in existence on the date hereof and made available to Buyer;
(xxvii) do anything that results in a Material Adverse Effect;
(xxviii) engage in any transaction with any Controlling Shareholder or Sellers and any third party of their Related Persons (excluding reasonable employment compensation, equity incentives and benefits approved by the board of directors of the Company prior to the Closing Date (other than date of this Agreement in accordance with pre-existing arrangementsexchange for services);; or
(zxxix) agree or commit to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsectionforegoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Tandem Diabetes Care Inc)
Restricted Actions. Unless: (x) otherwise specifically provided for in this Agreement, (y) disclosed in the Disclosure Letter, or (z) contemplated in the business plan as approved by the competent corporate body of the Group Companies which was included in the Data Room Documents, during the Pre-Closing Period, the Seller shall not, and shall procure that none of its Affiliates each Group Company shall cause not, without prior consent of Buyer (or, if applicable Merger Control Laws do not so permit, prior consultation of the Buyer), any of the Cablecom Companies to do any of the following, from the date of this Agreement through to the Closing Date:
(a) do anything that would take or fail to take any action which could materially interfere with the consummation of the transactions contemplated by under this Agreement taken as a wholeAgreement;
(b) execute accelerate any contracts order or enter into do any negotiations with any third party other act that is intended to increase the revenues for the purpose of increasing revenue during certain period or quarter that would materially inhibit not be done otherwise in the ordinary course of business (for example by soliciting customers (by providing financial incentives or impair otherwise) to make their orders earlier than they intended or by increasing the consummation of the transactions contemplated by this Agreement taken as a wholedistributor inventory);
(c) do anything which would have a Material Adverse Effect on take any action that increases the value inventory held by distributors of the Cablecom Business taken Group Companies as a wholecompared with the inventory held by distributors of the Group Companies as of December 31, unless specifically provided in this Agreement2011;
(d) make any material change in the terms (including granting severance) of employment of any director, officer or employee (including termination) of any of the Cablecom Business its directors, officers or employees other than (i) in accordance the ordinary course of business and consistent with past practice, existing agreements, commitments or existing as of the date of this Agreement collective bargaining arrangements or normal prior practice hire any employees with an annual gross salary exceeding CHF 100,000.00, or with a notice period (iiwith respect to termination) exceeding statutory notice periods or providing for severance payments, other than to fill open positions existing as disclosed in of the Disclosed Documentsdate of this Agreement, provided that such newly filled positions can be terminated with a notice period not to exceed statutory notice period and with no severance payments;
(e) issue adopt or create amend any obligation to issue employee compensation or benefit plan or amend any shares compensation, benefit, entitlement, grant or equity-linked securitiesaward previously made under any such plan, except as required by law;
(f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs);
(g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreement;
(h) alter or amend in any manner the articles of incorporation or organizational regulations of any of the Cablecom Subsidiaries;
(i) pay or pre-pay invoices other than consistent with prior business practice;
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries;
(l) form, enter into, vary, terminate or withdraw from any material partnership, consortium, joint venture or other incorporated associationsimilar business organization or agreement;
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in the ordinary and normal course of business;
(n) make, increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group other than in the ordinary and normal course of business;
(o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of business;
(p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business;
(q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group);
(r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business;
(vg) make any payment amendments to its articles of incorporation or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999organizational regulations;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(y) enter into any interconnection or open network access agreement with any Controlling Shareholder or any third party prior to the Closing Date (other than in accordance with pre-existing arrangements);
(z) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsection.
Appears in 1 contract
Restricted Actions. Seller Sellers shall not, and shall procure that none of its Affiliates shall cause from the date hereof until the Closing Date without prior consent written approval of Buyer Purchasers (orsuch approval not to be unreasonably withheld) or unless permitted under this Agreement or unless set forth in the Völkl Group Companies budgets as included in Schedule IV.G.1, if applicable Merger Control Laws do the Völkl Group Companies will not so permit, prior consultation of Buyer), any of the Cablecom Companies to do any of the following, from the date of this Agreement through to the Closing Date:
(a) do anything take any action that would materially interfere with the consummation of any of the transactions contemplated by this Agreement taken as a wholeAgreement;
(b) execute enter into, amend or terminate any contracts contracts, or enter into any negotiations with any third party party, that would materially inhibit or impair the consummation of any of the transactions contemplated by this Agreement taken as a wholeAgreement;
(c) do anything take any action or decision regarding the employment of persons which would could have a Material Adverse Effect material effect on VSH or the value Völkl Group Companies’ business or financial situation (including with respect to hiring, termination, changes in compensation, changes in fringe benefits, severance benefits or employee benefit plans or other material actions with respect to any such persons), including without limitation any salary increases in excess of EUR 100,000 p.a. in the Cablecom Business taken as a whole, unless specifically provided in this Agreementaggregate;
(d) make any change new investments in fixed assets as far as such investments on an individual basis exceed the terms amount of employment of any director, officer or employee of any of the Cablecom Business other than EUR 50,000 (i) in accordance with existing agreements, collective bargaining arrangements or normal prior practice or (ii) as disclosed in the Disclosed Documentsfifty thousand euros);
(e) issue sell or create dispose of or grant a lease of more than an aggregate of EUR 50,000 (fifty thousand euros) on any obligation to issue any shares or equity-linked securitiesof the Völkl Group Companies’ assets;
(f) buy sell, transfer, license or commit to buy otherwise dispose of any assets IP Rights;
(ig) outside change the level of Financial Debt in any manner other than in the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance consistent with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs);
(g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreementprior practice;
(h) with effect prior to the Closing Date, terminate the coverage of any insurance policies covering the operations of the Völkl Group Companies;
(i) settle any lawsuit or claim if such settlement imposes a material continuing obligation on the Business or on any of the Völkl Group Companies;
(j) change the terms and conditions of any material agreement they are a party to, or enter into any new material agreement other than in the ordinary course of business consistent with prior practice;
(k) issue or grant any rights, options or encumbrances over any shares or other equity instruments in the capital of any of the Völkl Group Companies;
(l) declare or pay any dividends in any form or way, or make any distribution of capital by any of the Völkl Group Companies, provided, however, that prior to the Closing Date, (i) certain Subsidiaries will pay dividends to VSH and (ii) the Völkl Group Companies will pay interest on the Loans to Xxxxxx until the Closing Date, such payments not having any impact on or causing any adjustment to the Purchase Price, it being understood that the dividend in the gross amount of EUR 1,500,000 to be distributed by VSH shall require no consent of the Purchasers;
(m) alter or amend in any manner the articles of incorporation or organizational regulations other constituting documents of any of the Cablecom SubsidiariesVölkl Group Companies;
(in) pay or pre-pay invoices other than consistent with prior business practicepractice (including without limitation with respect to employee benefit plans);
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries;
(lo) form, enter into, vary, vary or terminate or withdraw from any partnership, consortium, joint venture or other incorporated association;
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in business association materially effecting the ordinary and normal course of business;
(n) make, increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group other than in the ordinary and normal course of business;
(o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of businessBusiness;
(p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business;
(q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group);
(r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business;
(v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course file an amended Tax Return or claim for refund of business Or Taxes, (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(y) enter into any interconnection or open network access agreement with respect to Taxes, (iii) settle any Controlling Shareholder claim or assessment in respect of Taxes, (iv) consent to any third party extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (v) prepare any Tax Return in manner that is inconsistent with past practice in preparing similar Tax Returns in prior to periods, (vi) claim the Closing Date benefit of any net operating losses or Tax Credits on any Tax Returns that are filed after the date hereof, except on Tax Returns for the Current Period, but only for purposes of offsetting Taxes resulting from income generated by the Völkl Group Companies in the ordinary course of business diligently and prudently conducted during such period. For purposes of clause (other than vi) of the preceding sentence, Taxes resulting from income generated by the Völkl Group Companies in accordance with prethe ordinary course of business shall exclude, without limitation, the following items: (a) any income arising from non-existing arrangements);arm’s length dealings, and (b) any income arising from the breach of representation of warranties; or
(zq) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsection.
Appears in 1 contract
Restricted Actions. During the period commencing on the date of this Agreement and continuing until the Closing, except as specifically contemplated by this Agreement, the Trust shall cause each Utility Seller shall notto refrain from taking, and DTUENY shall procure that none not take, any of its Affiliates shall cause the following actions without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):
(i) declare, set aside, pay or make any in-kind distribution or similar payment with respect to any of its Equity Interests;
(ii) issue or sell any Equity Interests or purchase or redeem any of its outstanding Equity Interests;
(iii) (A) amend any material provision of any Benefit Plan, (B) adopt or enter into any arrangement that would be a Benefit Plan, (C) increase the compensation or benefits (including severance or termination pay) of, or grant or pay any benefits (including severance or termination pay) to, any officer or employee, or take any similar action, except, in the case of this subclause (C), to the extent required by applicable Law or any Benefit Plan set forth on Section 3.18(a) of the Disclosure Schedule, (D) hire any employee at an annual compensation level expected to be more than $100,000, or (E) materially increase or decrease the number of employees, independent contractors or others providing services to any Seller;
(iv) (A) guarantee any Indebtedness or, if applicable Merger Control Laws do not so permitexcept in the ordinary course of business consistent with past practice for working capital purposes under facilities existing on the date of this Agreement, prior consultation incur or increase any Indebtedness, (B) make any loans, advances or capital contributions to, or investments in, any Person or (C) enter into any new credit agreements or enter into any amendments or modifications of Buyerany existing credit agreements;
(v) acquire (A) by merging or consolidating with, or by purchasing any portion of the Equity Interests or any material portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or (B) any assets, except for purchases of inventory items and supplies, as well as other immaterial assets, in the ordinary course of business consistent with past practice;
(vi) lease, mortgage or otherwise encumber, or sell, transfer or otherwise dispose of, any assets, except for the sale of Inventory in the ordinary course of business consistent with past practice;
(vii) (A) make, rescind or change any Tax election, waive any restriction on any assessment period relating to Taxes, enter into any closing agreement regarding Taxes or settle or compromise any material Tax liability or refund, (B) enter into any closing agreement regarding Taxes or (C) change any material aspect of any method of accounting for Tax purposes;
(viii) (A) pay, discharge, waive or satisfy any Liabilities except in the ordinary course of business consistent with past practice or in accordance with their terms or (B) settle or compromise any material Litigation;
(ix) enter into any Material Contract of the type described in subclauses (a), (b), (e), (f), (g), (i), (j), (k), (l), (m) or (n) of Section 3.14;
(x) (A) terminate any Material Contract, or make any amendment to any Material Contract or any Related Person Contract, other than renewals of Contracts without changes in terms that are adverse to any Seller, or (B) execute or terminate any Related Person Contract;
(xi) manufacture, assemble or sell, or contract to manufacture, assemble or sell, Products/Services in a manner such that, in the aggregate, the total revenues arising therefrom would reasonably be expected to be less than the total costs (including costs related to discounts, cash prebates, rebates and similar items) associated with the manufacture, assembly and sale thereof (for this purpose, the relevant Contracts shall be evaluated over the life of the Cablecom Companies entire Contracts);
(xii) grant credit to any customer on terms or in amounts materially more favorable than those that have been extended to such customer in the past, effect any other material change in the terms of any credit heretofore extended by any Seller or effect any other material change of any Seller’s policies or practices with respect to the granting of credit;
(xiii) implement or adopt any change in accounting principles, practices or methods except to the extent required by GAAP;
(xiv) make or change any Tax election, settle or compromise any Tax claim or assessment, fail to file any Tax Return when due or surrender any right to claim a Tax refund, offset or other reduction in Tax liability, amend any Tax Return, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(xv) adopt a plan of liquidation or resolution providing for the liquidation or dissolution; or
(xvi) authorize or enter into any Contract to do any of the following, from the date of this Agreement through to the Closing Date:
(a) do anything that would materially interfere with the consummation of the transactions contemplated by this Agreement taken as a whole;
(b) execute any contracts or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated by this Agreement taken as a whole;
(c) do anything which would have a Material Adverse Effect on the value of the Cablecom Business taken as a whole, unless specifically provided in this Agreement;
(d) make any change in the terms of employment of any director, officer or employee of any of the Cablecom Business other than (i) in accordance with existing agreements, collective bargaining arrangements or normal prior practice or (ii) as disclosed in the Disclosed Documents;
(e) issue or create any obligation to issue any shares or equity-linked securities;
(f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs);
(g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreement;
(h) alter or amend in any manner the articles of incorporation or organizational regulations of any of the Cablecom Subsidiaries;
(i) pay or pre-pay invoices other than consistent with prior business practice;
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries;
(l) form, enter into, vary, terminate or withdraw from any partnership, consortium, joint venture or other incorporated association;
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in the ordinary and normal course of business;
(n) make, increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group other than in the ordinary and normal course of business;
(o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of business;
(p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business;
(q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group);
(r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business;
(v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(y) enter into any interconnection or open network access agreement with any Controlling Shareholder or any third party prior to the Closing Date (other than in accordance with pre-existing arrangements);
(z) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsection.
Appears in 1 contract
Restricted Actions. Seller shall notExcept for the actions described on Exhibit B, during the period commencing on the date of this Agreement and shall procure that none of its Affiliates continuing until the Closing, except as specifically contemplated by this Agreement, Parent and Sellers shall cause the Company to refrain from taking any of the following actions without the prior written consent of Buyer (orwhich consent shall not be unreasonably withheld, if applicable Merger Control Laws do not so permitconditioned or delayed):
(i) make any change or amendment to its charter documents, prior consultation including the LLC Agreement;
(ii) declare, set aside, or pay any dividend, distribution, or similar payment with respect to any Equity Interests, except as contemplated by Section 5.10;
(iii) purchase or redeem any of Buyerits outstanding Equity Interests or any rights, warrants, or options to acquire any Equity Interests, adjust, split, combine, or reclassify any of its Equity Interests, or make any other changes in its capital structure;
(iv) (A) issue, sell, pledge, or encumber any Equity Interests or (B) issue any securities convertible into or exchangeable for, or options, warrants to purchase, scrip, rights to subscribe for, calls, or commitments of any character whatsoever relating to, or enter into any Contract with respect to the issuance of, any Equity Interests or Voting Debt;
(v) permit any increase to, acceleration of the payment of, or funding of benefits or compensation available or provided under any Benefit Plan or other compensation payable or to become payable to any current or former employee, officer, director, or individual service provider of the Company (other than cost of living increases and promotional or position change increases occurring in the Ordinary Course);
(vi) (A) adopt, establish, terminate, enter into, commence participation in, amend, or modify any Benefit Plan, (B) transfer of the sponsorship of, or any assets or liabilities maintained under or pursuant to, any Benefit Plan to or from the Company, or (C) hire any employee at an annual compensation level (including salary and bonus) expected to be more than $75,000;
(vii) recognize or certify any labor union, works council, or other labor organization or group of employees as the bargaining representative of any employee of the Company;
(viii) (A) incur, increase, or guarantee any Indebtedness (other than draws on established lines of credit existing as of the date of this Agreement), (B) make any loans, advances, or capital contributions to, or investments in, any Person, or (C) enter into any agreements relating to or evidencing Indebtedness;
(ix) acquire (A) by merging or consolidating with, or by purchasing any portion of the Equity Interests or any material portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, association, or other business organization or division thereof or (B) any assets, except for purchases of inventory items or supplies in the Ordinary Course;
(x) lease, mortgage, or otherwise encumber, or sell, transfer, or otherwise dispose of, any assets, except for the sale of inventory in the Ordinary Course;
(xi) (A) make, rescind, or change any Tax election or method of Tax accounting that are inconsistent with the past practices of the Company, (B) settle any dispute with respect to Taxes of the Company, (C) amend any Tax Return previously filed by the Company, (D) enter into any Tax closing agreement or similar Contract, (E) surrender any right to claim a refund of Taxes, or (F) waive or extend the limitations period applicable to any Tax claim or assessment;
(xii) (A) pay, discharge, waive, or satisfy any Liabilities except in the Ordinary Course or in accordance with their terms or (B) settle or compromise any Litigation or waive or release any material rights of the Company;
(xiii) make or commit to make any capital expenditures in excess of $25,000 other than as reflected in the capital expenditure budget of the Company, a correct and complete copy of which has been made available to Buyer prior to the date of this Agreement;
(A) enter into, terminate, or make any amendment to, any Material Contract (or any Contracts that would be a Material Contract if in existence on the date of this Agreement), other than renewals of Contracts in the Ordinary Course without changes in terms that are materially adverse to the Company, or (B) execute, terminate, or make any amendment to any Related Party Contract;
(xv) implement or adopt any change in accounting principles, practices, or methods, except to the extent required by GAAP;
(xvi) adopt a plan of liquidation or resolution providing for the liquidation or dissolution;
(xvii) take any action or omit to take any action that is reasonably expected to cause any of the Cablecom Companies representations and warranties of Parent or any Seller contained in or made pursuant to this Agreement to become untrue in any material respect; or
(xviii) authorize or enter into any Contract to do any of the following, from the date of this Agreement through to the Closing Date:
(a) do anything that would materially interfere with the consummation of the transactions contemplated by this Agreement taken as a whole;
(b) execute any contracts or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated by this Agreement taken as a whole;
(c) do anything which would have a Material Adverse Effect on the value of the Cablecom Business taken as a whole, unless specifically provided in this Agreement;
(d) make any change in the terms of employment of any director, officer or employee of any of the Cablecom Business other than (i) in accordance with existing agreements, collective bargaining arrangements or normal prior practice or (ii) as disclosed in the Disclosed Documents;
(e) issue or create any obligation to issue any shares or equity-linked securities;
(f) buy or commit to buy any assets (i) outside the ordinary course of business or (ii) at terms other than at arm's length, or (iii) other than in accordance with the budgeted capital expenditures of the Cablecom Group: (iv) for a consideration in excess of CHF 10,000,000 (ten million Swiss Francs); notwithstanding the foregoing, it is understood and agreed that Seller may continue to complete its network through acquisition of local cable television networks the net purchase price of which shall not exceed CHF 20,000,000 (twenty million Swiss Francs);
(g) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated in this Agreement;
(h) alter or amend in any manner the articles of incorporation or organizational regulations of any of the Cablecom Subsidiaries;
(i) pay or pre-pay invoices other than consistent with prior business practice;
(j) transfer any shares in any of the Cablecom Companies to a third party outside of the Cablecom Group;
(k) increase or reduce or otherwise change the share capital or capital structure, or grant any option or conversion rights on the equity of any of the Cablecom Subsidiaries;
(l) form, enter into, vary, terminate or withdraw from any partnership, consortium, joint venture or other incorporated association;
(m) enter into, or increase or extend any liability under, any guarantee or indemnity other than in the ordinary and normal course of business;
(n) make, increase or extend any loan or advance or grant any credit to any person outside of the Cablecom Group other than in the ordinary and normal course of business;
(o) grant, create or allow to be created any charge, security, mortgage, lien or encumbrance over any of its assets in a value exceeding CHF 5,000,000 (five million Swiss Francs), other than charges arising by operation of law in the ordinary and normal course of business;
(p) borrow any money or incur any indebtedness or other liability other than trade credit or borrowings in the ordinary and normal course of business;
(q) incorporate or liquidate any subsidiary undertaking or effect any reorganization with respect to such subsidiary (other than the ongoing reorganization of the Swiss-German companies of the Cablecom Group);
(r) initiate, discontinue or settle any litigation or arbitration proceedings where the amount claimed together with any costs incurred or likely to be incurred exceeds CHF 3,000,000 (three million Swiss Francs), not including value added taxes;
(s) grant or enter into any license, agreement or arrangement concerning any part of its name or trade names or any other part of the intellectual property of the Cablecom Business other than in the ordinary and normal course of business;
(t) amend or vary the rates of interest applicable to the Parent Intercompany Debt or the Subsidiary Intercompany Debt other than pursuant to pre-existing contractual arrangements;
(u) enter into, vary, supplement, amend or terminate any agreement or arrangement with the Seller or any of the Controlling Shareholders or their respective Affiliates, other than in the ordinary and normal course of business;
(v) make any payment or transfer any assets to Seller or any of the Controlling Shareholders on their respective Affiliates other than (i) payments in the ordinary and normal course of business Or (ii) payment of dividends as set out in Exhibit 13. It is understood and agreed, however, that Seller shall remain entitled to all dividends of the Cablecom Companies for the financial year 1999;
(w) amend, vary or supplement any of the regulatory licenses of the Cablecom Subsidiaries other than as contemplated in this Agreement;
(x) do, allow or procure any act or omission before the Effective Date which is likely to constitute a misrepresentation or breach of warranty upon their being deemed to be given as at the Effective Date;
(y) enter into any interconnection or open network access agreement with any Controlling Shareholder or any third party prior to the Closing Date (other than in accordance with pre-existing arrangements);
(z) agree to do any of the things referred to above. Seller hereby undertakes fully and promptly to inform Buyer whenever it contemplates to do, or cause to be done, or propose to be done, a transaction that is or may be effected by the restrictions set forth in this subsection.
Appears in 1 contract
Samples: Unit Purchase Agreement (Mayville Engineering Company, Inc.)
