Interim Operation. (a) During the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, except (i) as specifically contemplated by this Agreement, (ii) as set forth in Section 4.1 of the Goodyear Disclosure Letter with respect to GDTNA and as set forth in Section 4.1 of the SRI Disclosure Letter with respect to NGY, or (iii) with the prior written consent of Goodyear or SRI, as applicable, SRI shall cause NGY to, and Goodyear shall cause GDTNA to: (x) maintain its existence as an entity, (y) conduct its business in the Ordinary Course, including paying its accounts payable (including intercompany accounts payable) and collecting its Accounts Receivable (including intercompany Accounts Receivable) in the Ordinary Course and (z) use its commercially reasonable efforts to preserve intact its business organization, Permits, its relationships with its employees, and its business relationships with customers, suppliers and others with whom such Person deals in the Ordinary Course. (b) Without limiting the generality of the foregoing, except (i) as specifically contemplated by this Agreement, (ii) as set forth in Section 4.1 of the Goodyear Disclosure Letter with respect to GDTNA and as set forth in Section 4.1 of the SRI Disclosure Letter with respect to NGY, or (iii) with the prior written consent of (x) Goodyear with respect to the activities of NGY and (y) SRI, with respect to the activities of GDTNA, during the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, SRI shall cause NGY not to, and Goodyear shall cause GDTNA not to: (i) amend or otherwise modify its Organizational Documents;
Appears in 1 contract
Sources: Framework Agreement
Interim Operation. (a) During the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, except (i) as specifically contemplated by this Agreement, (ii) as set forth in Section 4.1 of the Goodyear Disclosure Letter with respect to GDTNA and as set forth in Section 4.1 of the SRI Disclosure Letter with respect to NGY, or (iii) with the prior written consent of Goodyear or SRI, as applicable, SRI shall cause NGY to, and Goodyear shall cause GDTNA to: (x) maintain its existence as an entity, (y) conduct its business in the Ordinary Course, including paying its accounts payable (including intercompany accounts payable) and collecting its Accounts Receivable (including intercompany Accounts Receivable) in the Ordinary Course and (z) use its commercially reasonable efforts to preserve intact its business organization, Permits, its relationships with its employees, and its business relationships with customers, suppliers and others with whom such Person deals in the Ordinary Course.
(b) Without limiting the generality of the foregoing, except (i) as specifically contemplated by this Agreement, (ii) as set forth in Section 4.1 of the Goodyear Disclosure Letter with respect to GDTNA and as set forth in Section 4.1 of the SRI Disclosure Letter with respect to NGY, or (iii) with the prior written consent of (x) Goodyear with respect to the activities of NGY and (y) SRI, with respect to the activities of GDTNA, during the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, SRI shall cause NGY not to, and Goodyear shall cause GDTNA not to:
(i) amend or otherwise modify its Organizational Documents;
(ii) merge with or into or consolidate with any other Person or liquidate or dissolve;
(iii) issue, grant, transfer, split, combine, redeem, reclassify, purchase or otherwise acquire, any of its Equity Securities or any Equity Rights of any kind relating to such Equity Securities;
(iv) declare, distribute, set aside or pay any dividend, distribution or other amount in respect of any of its Equity Securities;
(v) transfer, issue, sell, pledge, encumber or dispose of any Equity Securities or grant any Equity Rights in such Person or with respect to the Subject Securities;
(vi) incur any Indebtedness or guarantee the Indebtedness of any other Person, except intercompany Indebtedness in the Ordinary Course incurred pursuant to the GDTNA Reciprocal Loan Agreement, in the case of GDTNA, or the NGY Reciprocal Loan Agreement, in the case of NGY, which shall not exceed forty-five million dollars ($45,000,000) in the aggregate, in any event;
(vii) make any loans, advances or capital contributions to, or investments in, any other Person, except repayment of intercompany Indebtedness owed to any Goodyear Group Member or SRI Group Member, as applicable, in the Ordinary Course or pursuant to Section 2.9;
(viii) except for sale of the Inventory in the Ordinary Course, sell, transfer, lease or otherwise dispose of or pledge (other than any statutory or precautionary Liens) any of its material assets;
(ix) subject or allow to be subjected any of the properties or assets (whether tangible or intangible) of such Person to any Liens (other than any Permitted Liens);
(x) settle any Action that results in the imposition of any restrictions upon its operations or results in the imposition of any fines or penalties in excess of $100,000 in the aggregate that will not fully be paid by Closing;
(xi) make any change to its accounting policies or accounting methods, other than as required by GAAP or JGAAP as applicable, or applicable Law (provided that in the event such change is to be effected as permitted hereunder, the changing Party shall provide advance written notice thereof in sufficient detail to the other Party);
(xii) make, change, or revoke any material tax election, change any material Tax accounting method, file any material amended Tax Return, or settle and/or compromise any material Tax liability, enter into any “closing agreement,” extend the statute of limitations period for the assessment or collection of any Tax, apply for or request any Tax ruling, or surrender any right to claim a material Tax refund;
(xiii) enter into, terminate, or modify (including by way of waiver) any (A) Material Contract, or (B) Contract with an Affiliate of such Person, except in the case of clause (A), in the Ordinary Course and in each case provided that the Party controlling the Person entering into, terminating or modifying any such Material Contract shall have provided advance written notice thereof in sufficient detail to the other Party;
(xiv) other than (A) as required by applicable Law, (B) as required by any existing benefit arrangement for the employees or other service providers of such Person or (C) in the Ordinary Course: (1) enter into or materially amend any benefit arrangement for the employees or other service providers of such Person, (2) take any action to accelerate any rights or benefits under any benefit arrangement for the employees or other service providers of such Person, including the implementation of any pension lump sum window program, in a manner that would materially increase the unfunded liability under a GDTNA Plan on either an accounting basis or a plan funding basis, (3) make any increase in salaries or other compensation payable to any employee of such Person, (4) grant, award or increase any compensation, bonus, equity or equity-based award, benefit or other direct or indirect compensation to any director, officer, employee or individual consultant of such Person, (5) increase the coverage or material benefits available under any (or establish, adopt or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of such Person or otherwise materially modify or materially amend or terminate any such plan or arrangement, or (6) enter into any employment, deferred compensation, severance, special pay, individual consulting, non-competition or similar agreement or arrangement with any directors or officers of such Person (or materially amend any such agreement to which a member of such Person is a party);
(xv) acquire any material properties or assets, or any business or Person, by merger, consolidation, or otherwise, in a single transaction or a series of related transactions;
(xvi) make, incur or enter into any non-cancellable financial commitment or capital expenditure requiring aggregate payments over the life of the commitment or expenditure in excess of $500,000 in the aggregate, except (A) in the Ordinary Course, (B) in accordance with such Person’s annual operating plan or budget, or (C) pursuant to a Material Contract entered into, or transaction otherwise approved by such Person’s governing body, prior to the execution and delivery of this Agreement;
(xvii) write off as uncollectible any Accounts Receivable or write off, cancel or forgive any Indebtedness owed to such Person, except write-offs of Accounts Receivable in the Ordinary Course charged to applicable reserves;
(xviii) except as set forth on Schedule 4.1(b)(xviii), solicit for purposes of employment, offer to hire, entice away or transfer employees (A) in the case of a GDTNA employee as of the Effective Date, from GDTNA to any other Goodyear Group Member, (B) in the case of an employee of any Goodyear Group Member as of the Effective Date, from such Goodyear Group Member to GDTNA, (C) in the case of an NGY employee as of the Effective Date, from NGY to any other SRI Group Member, or (D) in the case of an employee of any SRI Group Member, from such SRI Group Member to NGY; or
(xix) enter into or agree to enter into any Contract or commitment, or pass any board or equivalent resolutions, to do any of the foregoing.
(c) Without limiting the generality of the foregoing, during the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, Goodyear and its Affiliates shall not settle any Action with respect to any intellectual property used or held for use in the operation of GDTNA’s business that results in the imposition of any material Liens, Liabilities or other restrictions of any kind on GDTNA’s use of such intellectual property, other than with respect to (i) the settlement of the matter disclosed on Schedule 4.1(c) on terms and conditions no less favorable than are contemplated thereby or (ii) any commercially available or “off the shelf” software products, without the prior written consent of SRI (such consent not to be unreasonably withheld, delayed or conditioned).
(d) Without limiting the generality of the foregoing, during the period commencing on the Effective Date and continuing until the earlier of the termination of this Agreement and the occurrence of the Closing, SRI and its Affiliates shall not settle any Action with respect to any intellectual property used or held for use in the operation of NGY’s business that results in the imposition of any material Liens, Liabilities or other restrictions of any kind on NGY’s use of such intellectual property, other than with respect to any commercially available or “off the shelf” software products, without the prior written consent of Goodyear (such consent not to be unreasonably withheld, delayed or conditioned).
Appears in 1 contract
Sources: Framework Agreement (Goodyear Tire & Rubber Co /Oh/)