/Docs/G/ABA-MSPA-SPA-CmA/Form/SPA/0.md
  Source views: Source JSON(ish) on GitHub (VSCode)   Doc views: Document (&k=Cov.Sec): Visual Print Technical: OpenParameters Xray
Covenants of Sellers Prior to Closing Date
  1. Access and Investigation
    Prior to the Closing Date, and upon reasonable notice from Buyer, each Seller shall, and shall cause each Acquired Company to, (a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, "Buyer Group") full and free access, during regular business hours, to each Acquired Company's personnel, assets, Contracts, and Records, (b) furnish Buyer Group with copies of all such Contracts and Records as Buyer may reasonably request, (c) furnish Buyer Group with such additional financial, operating, and other relevant data and information as Buyer may reasonably request, and (d) otherwise cooperate and assist, to the extent reasonably requested by Buyer, with Buyer's investigation of the business, condition (financial or otherwise), assets, results of operations, or prospects of each Acquired Company. In addition, Buyer shall have the right to have the Real Property and the tangible personal property of each Acquired Company inspected by Buyer Group, at Buyer's sole cost and expense, including the performance of subsurface or other intrusive testing.
  2. Operation of the Business of the Acquired Companies
    Prior to the Closing Date, each Seller shall, and shall cause each Acquired Company to:
    1. conduct the business of such Acquired Company only in the Ordinary Course of Business;
    2. use its best efforts to preserve intact the current business organization of such Acquired Company, keep available the services of the officers, employees, and agents of such Acquired Company, and maintain its relations and goodwill with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with such Acquired Company;
    3. confer with Buyer prior to implementing operational decisions of a material nature;
    4. report to Buyer at such times as Buyer may reasonably request concerning the status of the business, condition (financial or otherwise), assets, results of operations, or prospects of such Acquired Company;
    5. make no material changes in management personnel of such Acquired Company;
    6. maintain the assets owned or used by such Acquired Company in a state of repair and condition that complies with Legal Requirements and Contracts and is consistent with the requirements and normal conduct of the business of such Acquired Company;
    7. keep in full force and effect, without amendment, all material rights relating to the business of such Acquired Company;
    8. comply with all Legal Requirements applicable to, and all Applicable Contracts of, such Acquired Company;
    9. continue in full force and effect the insurance coverage under the policies set forth in Part 3.18 or substantially equivalent policies;
    10. except as required to comply with ERISA or to maintain qualification under Section 401(a) of the Code, not amend, modify, or terminate any Employee Plan and, except as required under the provisions of any Employee Plan, not make any contributions to or with respect to any Employee Plan;
    11. maintain all records of such Acquired Company consistent with past practice; and
    12. take no action, or fail to take any reasonable action within its control, as a result of which any of the changes or events listed in Section 3.16 would be likely to occur.
  3. Filings and Notifications; Cooperation
    As promptly as practicable after the date of this Agreement, and in any event within the applicable time period prescribed by Legal Requirements, each Seller shall, and shall cause each Acquired Company and each of their Related Persons to, make all filings and notifications required by Legal Requirements to be made by them in connection with the Contemplated Transactions (including all filings under the HSR Act). Each Seller shall, and shall cause each Acquired Company and each of their Related Persons to, cooperate with Buyer, its Related Persons, and their respective Representatives (a) with respect to all filings and notifications that Buyer or its Related Persons elect to make or shall be required by Legal Requirements to make in connection with the Contemplated Transactions, (b) in identifying and obtaining the Governmental Authorizations required by Buyer to own and operate each Acquired Company from and after the Closing Date, and (c) in obtaining all Consents identified in Exhibit 9.4 (including taking all actions requested by Buyer to cause early termination of any applicable waiting period under the HSR Act).
  4. Notice
    1. Prior to the Closing Date, each Seller shall promptly provide notice to Buyer of any Breach of any representation or warranty of Sellers or any fact or circumstance that would or would reasonably be likely to cause or constitute a Breach of any such representation or warranty had that representation or warranty been made as of the time of the occurrence of such fact or circumstance. Should any such Breach relate to the Disclosure Letter, each Seller shall promptly deliver to Buyer a supplement to the Disclosure Letter. No such notice or delivery will be deemed to have cured any Breach of any representation or warranty or affect any right or remedy of Buyer under this Agreement.
    2. Prior to the Closing Date, each Seller shall promptly provide notice to Buyer of any Breach of any covenant of Sellers in this Section 5 or any fact or circumstance that could make the satisfaction of any condition in Section 8 impossible or unlikely and of all corrective actions undertaken, or to be undertaken, by such Seller with respect thereto. No such notice will be deemed to have cured any Breach of any covenant or affect any right or remedy of Buyer under this Agreement.
  5. Payment of Indebtedness by Related Persons
    Each Seller shall cause all indebtedness owed to an Acquired Company by any Seller or any Related Person of any Seller to be paid in full prior to Closing.
  6. Exclusive Dealings
    Until this Agreement shall have been terminated pursuant to Section 10.1, no Seller shall, and each Seller shall cause each Acquired Company and each of their respective Representatives not to, directly or indirectly, solicit, initiate, encourage, or entertain any inquiries or proposals from, discuss or negotiate with, provide any nonpublic information to, or consider the merits of any inquiries or proposals from any Person (other than Buyer) relating to any business combination transaction involving any Seller or Acquired Company, however structured, including the sale of the business or assets (other than in the Ordinary Course of Business) of any Acquired Company, or any Equity Security of any Acquired Company, or any merger, consolidation, or similar transaction or arrangement. Each Seller shall notify Buyer of any such inquiry or proposal within 24 hours of receipt thereof by any Seller, Acquired Company, or any of their respective Representatives.
  7. Exclusive Dealings
    Until this Agreement shall have been terminated pursuant to Section 10.1, no Seller shall, and each Seller shall cause each Acquired Company and each of their respective Representatives not to, directly or indirectly, solicit, initiate, encourage, or entertain any inquiries or proposals from, discuss or negotiate with, provide any nonpublic information to, or consider the merits of any inquiries or proposals from any Person (other than Buyer) relating to any business combination transaction involving any Seller or Acquired Company, however structured, including the sale of the business or assets (other than in the Ordinary Course of Business) of any Acquired Company, or any Equity Security of any Acquired Company, or any merger, consolidation, or similar transaction or arrangement. Each Seller shall notify Buyer of any such inquiry or proposal within 24 hours of receipt thereof by any Seller, Acquired Company, or any of their respective Representatives.
  8. Best Efforts
    Each Seller shall use its best efforts to cause the conditions in Section 8 (other than Section 8.11) to be satisfied.
  9. Financial Information
    Sellers shall deliver to Buyer within FinancialReport.Month.Wait.Days after the end of each month a copy of each Acquired Company's FinancialReport.Month.Content for such month prepared in a manner and containing information consistent with such Acquired Company's current practices.
  10. Financing Cooperation
    Each Seller shall, and shall cause each Acquired Company, their Related Persons, and their respective Representatives to, cooperate with Buyer with respect to Buyer's arranging of financing of the Contemplated Transactions, as Buyer may reasonably request.
  • Covenants of Buyer Prior to Closing Date
    1. Filings and Notifications; Cooperation
      As promptly as practicable after the date of this Agreement, and in any event within the applicable time period prescribed by Legal Requirements, Buyer shall, and shall cause each of its Related Persons to, make all filings and notifications required by Legal Requirements to be made by them in connection with the Contemplated Transactions (including all filings under the HSR Act). Buyer shall, and shall cause each of its Related Persons to, cooperate with each Seller, each Acquired Company, their Related Persons and their respective Representatives (a) with respect to all filings and notifications that any Seller, any Acquired Company, or their Related Persons shall be required by Legal Requirements to make in connection with the Contemplated Transactions and (b) in obtaining all Material Consents; provided, however, that Buyer shall not be required to dispose of or make any change to its business, expend any material funds, or incur any other material obligation in order to comply with this Section 6.1.
    2. Notice
      1. Prior to the Closing Date, Buyer shall promptly provide notice to Sellers of any Breach of any representation or warranty of Buyer or any fact or circumstance that would or would reasonably be likely to cause or constitute a Breach of any such representation or warranty had that representation or warranty been made as of the time of the occurrence of such fact or circumstance. No such notice will be deemed to have cured any Breach of any representation or warranty or affect any right or remedy of Sellers under this Agreement.
      2. Prior to the Closing Date, Buyer shall provide notice to Sellers of any Breach of any covenant of Buyer in this Section 6 or any fact or circumstance that could make the satisfaction of any condition in Section 9 impossible or unlikely and of all corrective actions undertaken, or to be undertaken, by Buyer with respect thereto. No such notice will be deemed to have cured any Breach of any covenant or affect any right or remedy of Sellers under this Agreement.
    3. Best Efforts
      Buyer shall use its best efforts to cause the conditions in Section 9 to be satisfied; provided, however, that Buyer shall not be required to dispose of or make any change to its business, expend any material funds, or incur any other material obligation in order to comply with this Section 6.3.
  • Post-Closing Covenants
    1. Cooperation and Proceedings; Access to Records
      1. After the Closing, each Seller shall cooperate with Buyer and its counsel and make itself and its Representatives available to Buyer and the Acquired Companies in connection with the institution or defense of any Proceeding, whether existing, threatened, or anticipated, involving or relating to the Contemplated Transactions, Buyer, any Seller, or any Acquired Company, including providing testimony, Records, and other information.
      2. Each Seller and Buyer will make available to the other any Records in the nonrequesting party's custody or control for the purpose of preparing any financial statement or Tax Return or preparing for or defending any tax-related examination of the requesting party or any Acquired Company by any Governmental Body. The party requesting such Records will reimburse the nonrequesting party for the reasonable out-of-pocket costs and expenses incurred by the nonrequesting party. The nonrequesting party will afford access to such Records during normal business hours, upon reasonable advance notice given by the requesting party, and subject to such reasonable limitations as the nonrequesting party may impose to delete competitively sensitive or privileged information.
    2. Noncompetition, Nonsolicitation, and Nondisparagement
      1. For a period of Noncompete.Years after the Closing Date:
        1. No Seller shall, directly or indirectly, engage, invest in, own, manage, operate, finance, control, advise, render services to, guarantee the obligations of, be employed by, be associated with, or in any manner be connected with any Person engaged in any business that any Acquired Company conducts as of the Closing Date  in any geographic area in which any Acquired Company conducts such business; provided, however, that any Seller may acquire or otherwise own less than Noncompete.OtherShare.Max.% of the outstanding capital stock of a Person that is listed on any national securities exchange or which is registered under Section 12(g) of the Exchange Act.
        2. No Seller shall, directly or indirectly, (A) cause, induce, or attempt to cause or induce any employee, agent, or independent contractor of any Acquired Company to terminate such relationship; (B) in any way interfere with the relationship between any Acquired Company and any of its employees, agents, or independent contractors; or (C) hire, retain, employ, or otherwise engage or attempt to hire, retain, employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee, agent, or independent contractor of any Acquired Company.
        3. No Seller shall, directly or indirectly, (A) solicit, induce, or otherwise cause, or attempt to solicit, induce, or otherwise cause, any customer, supplier, licensor, licensee, or any prospective customer, supplier, licensor, or licensee that has been contacted or targeted for contact by any Acquired Company on or before the Closing Date, or any other person engaged in a business relationship with any Acquired Company, to (1) terminate, curtail, or otherwise modify its relationship with any Acquired Company or (2) engage in business with a competitor of any Acquired Company, or (B) interfere in any way with the relationship between any Acquired Company, and any of its customers, suppliers, licensors, licensees, or any such prospective customers, suppliers, licensors, or licensees, or any other Person engaged in a business relationship with any Acquired Company.
      2. No Seller shall make any disparaging statement, either orally or in writing, regarding Buyer, any Acquired Company, the business, products, or services thereof, or any of their respective shareholders, directors, officers, employees, or agents.
      3. For a period from the date of this Agreement until two years after the Closing Date, within 10 days after any Seller entering into an employment, consulting engagement, independent contractor engagement, partnership, or other business association with any Person, each such Seller shall advise Buyer of the identity and address of such Person. Buyer may notify each such Person that such Seller is bound by this Section 7.2 and may furnish each such Person with a copy of applicable provisions of this Agreement.
      4. Each Seller agrees that this Section 7.2, including the provisions relating to duration, geographical area, and scope, is reasonable and necessary to protect and preserve Buyer's and the Acquired Companies' legitimate business interests and the value of the Shares and the Acquired Companies, and to prevent an unfair advantage from being conferred on any Seller.
      5. If any provision of this Section 7.2 would be held to be excessively broad as to duration, geographical area, scope, activity, or subject, for any reason, such provision shall be modified, by limiting and reducing it, so as to be enforceable to the extent allowed by applicable Legal Requirements.
      6. Each Seller acknowledges that any Breach of this Section 7.2 would result in serious and irreparable injury to Buyer, Buyer could not be adequately compensated by monetary damages alone, and Buyer's remedy at law would not be adequate. Therefore, each Seller acknowledges and agrees that, in the event of a Breach by any such Seller, Buyer shall be entitled, in addition to any other remedy at law or in equity to which Buyer may be entitled, to equitable relief against such Seller, including temporary restraining orders and preliminary and permanent injunctions to restrain such Seller from such Breach and to compel compliance with the obligations of such Seller, and each Seller waives the posting of a bond or undertaking as a condition to such relief.
    3. Confidentiality
      1. As used in this Section 7.3, the term "Confidential Information" includes any of the following information held or used by or relating to any Acquired Company:
        1. all information that is a Trade Secret;
        2. all information concerning specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, computer hardware, Software and computer software, database technologies, systems, structures and architectures; and
        3. all information concerning the business and affairs of any Acquired Company, including historical and current financial statements, financial projections and budgets, tax returns and accountants’ materials, historical, current, and projected sales, capital spending budgets and plans, business plans, strategic plans, marketing and advertising plans, publications, client and customer and prospect lists and files, current and anticipated customer requirements, price lists, market studies, Contracts, the names and backgrounds of key personnel and personnel training techniques and materials, however documented.
      2. Each Seller acknowledges the confidential and proprietary nature of the Confidential Information and agrees that such Seller shall, except to the extent required for a Seller who is employed by an Acquired Company to fulfill his or her duties in the course of such employment, from and after the Closing: (i) keep the Confidential Information confidential and deliver promptly to Buyer, or immediately destroy at Buyer's option, all embodiments and copies of the Confidential Information that are in such Seller's possession; (ii) not use the Confidential Information for any reason or purpose; and (iii) without limiting the foregoing, not disclose the Confidential Information to any Person, except with Buyer's Consent.
      3. Section 7.3(b) does not apply to that part of the Confidential Information that becomes generally available to the public other than as a result of a Breach of this Section 7.3 by any Seller. Confidential Information shall not be deemed "generally available to the public" merely because it is included or incorporated in more general information that is publicly available or because it combines features which individually may be publicly available.
      4. If any Seller becomes compelled in any Proceeding to make any disclosure that is prohibited by this Section 7.3, such Seller shall, to the extent legally permissible, provide Buyer with prompt notice of such compulsion so that Buyer may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 7.3. In the absence of a protective order or other remedy, such Seller may disclose that portion (and only that portion) of the Confidential Information that, based upon the opinion of such Seller's counsel, such Seller is legally compelled to disclose; provided, however, that such Seller shall use its best efforts to obtain written assurance that any Person to whom any Confidential Information is so disclosed shall accord confidential treatment to such Confidential Information.
      5. Nothing in this Section 7.3 will diminish the protections and benefits under applicable Legal Requirements to which any Trade Secret of any Acquired Company is entitled. If any information that an Acquired Company asserts to be a Trade Secret under applicable Legal Requirements is found by a court of competent jurisdiction not to be such a Trade Secret, such information will nonetheless be considered Confidential Information of that Acquired Company for purposes of this Section 7.3.
    4. Customer and Other Business Relationships
      1. After the Closing, each Seller shall cooperate with Buyer and the Acquired Companies in their efforts to continue and maintain for the benefit of Buyer and the Acquired Companies those business relationships of any Acquired Company and of such Seller relating to the business of any Acquired Company, including relationships with any customers, suppliers, licensors, licensees, lessors, employees, regulatory authorities, and others. Each Seller shall refer to Buyer and the Acquired Companies all inquiries and communications received by such Seller relating to any Acquired Company after the Closing.
      2. After the Closing, no Seller shall take any action, either directly or indirectly, that could diminish the value of any Acquired Company or interfere with the business of any Acquired Company.