M&A Boot Camp booklet 2023 - Flipbook - Page 128
(p) the Company shall not commence or settle any Legal Proceeding other than: (i) for routine collection of bills; (ii) in such cases
where it in good faith determines that failure to commence a suit would result in material impairment of a valuable aspect of its business,
provided that it notifies Parent prior to the filing of such suit; or (iii) for breach of this Agreement;
(q) the Company shall not accelerate the collection of any accounts receivable or delay the payment of any accounts payable; and
(r) the Company shall not agree or commit to take any of the actions described in clauses “(d)” through “(q)” above.
Notwithstanding the foregoing, the Company may take any action described in: (i) clauses “(d)” through “(q)” above if: (A) Parent
gives its prior written consent to the taking of such action by the Company; or (B) such action is expressly contemplated by this Agreement;
and (ii) Part 4.2 of the Disclosure Schedule after consultation with Parent.
4.3 Notification; Updates to Disclosure Schedule.
(a) Notification. During the Pre-Closing Period, the Company shall promptly notify Parent in writing of: (i) the discovery by the
Company of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or
constitutes a breach of or an inaccuracy in any representation or warranty made by the Company in this Agreement; (ii) any event,
condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a breach of or
an inaccuracy in any representation or warranty made by the Company in this Agreement if: (A) such representation or warranty had been
made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance; or (B) such event, condition,
fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any breach of any covenant or obligation
of the Company; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth
in Section 6 or Section 7 impossible or unlikely.
(b) Updates. If any event, condition, fact or circumstance that is required to be disclosed pursuant to Section 4.3(a) requires any
change in the Disclosure Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the
Disclosure Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then
the Company shall promptly deliver to Parent an update to the Disclosure Schedule specifying such change. No such update shall be
deemed to supplement or amend the Disclosure Schedule for the purpose of: (i) determining the accuracy of any of the representations and
warranties made by the Company in this Agreement; or (ii) determining whether any of the conditions set forth in Section 6 has been
satisfied.
4.4 No Negotiation. During the Pre-Closing Period, the Company shall not, and the Company shall not authorize or permit any
Representative to: (a) solicit or knowingly encourage the initiation or submission of any expression of interest, inquiry, proposal or offer from any
Person (other than Parent) relating to a possible Acquisition Transaction; (b) participate in any discussions or negotiations or enter into any
agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent or its Representatives)
relating to or in connection with a possible Acquisition Transaction; or (c) entertain or accept any proposal or offer from any Person (other than
Parent) relating to a possible Acquisition Transaction. The Company shall promptly (and in any event within 48 hours of receipt thereof) notify
Parent in writing of any inquiry, indication of interest, proposal or offer relating to a possible Acquisition Transaction that is received by the
Company during the Pre-Closing Period (including the identity of the Person making or submitting such inquiry, indication of interest, proposal or
offer, and the terms thereof).
38.