Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law: (i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals; (ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions; (iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business); (iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater); (v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub; (vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business); (vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; (viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or (ix) enter into any agreement to do any action prohibited under this Section 7.5. (b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 2 contracts
Samples: Merger Agreement (Xos, Inc.), Merger Agreement (NextGen Acquisition Corp)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except (i) as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, (including ii) as contemplated required by the PIPE Investment or in connection with the DomesticationLaw, (iii) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (iv) as set forth in Section 8.4 of the Acquiror Disclosure Letter, (A) use reasonable best efforts to operate its business in the ordinary course and consistent with past practicepractice and (B) comply in all material respects with its Governing Documents. Without limiting the generality of the foregoing, except as set forth in Section 8.4 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements other Transaction Documents or as required by Law:
(ia) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubAcquiror, except as contemplated by the Transaction Proposals;
(iib) except as contemplated merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the Transaction Proposalsassets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(Ac) (x) make or declare any dividend or distribution to the its shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interestsits Equity Securities, (By) splitsubdivided, combineconsolidate, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interestsits Equity Securities, or (Cz) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubEquity Securities, other than a redemption of shares redemptions of Acquiror Class A Common Stock Ordinary Shares made as part of the Acquiror Share Redemptions;
(iiid) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing Tax authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (agreement or any similar provision of state, local, or foreign Law) with any Governmental Authority other binding written agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(ive) except as contemplated by this Agreement, the Transaction Documents, and the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(f) other than as expressly required or contemplated by the Sponsor Support AgreementAgreement or any other Transaction Document, enter into, renew or amend in any material respect, any transaction or Contract with Sponsor or an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, including (A) the Sponsor and (Bi) any Person in which the Sponsor has a direct or indirect legal, contractual legal or beneficial ownership interest of five percent (5% %) or greatermore and (ii) any Person who has a direct or indirect legal or beneficial ownership interest of five percent (5%) or more in the Sponsor);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness Contract relating to a Working Capital Loan, any Contract related to Acquiror Transaction Expenses, any Contract relating to the non-redemption of Acquiror Shares or any other Contract set out in the Acquiror Disclosure Letter;
(g) incur, guarantee or otherwise become liable for borrowed money or guarantee any Indebtedness, other than (Ai) liabilities incurred in the ordinary course of business consistent with past practice and in an aggregate amount amount, individually or in the aggregate, not to exceed $100,000, (Bii) incurred between any Acquiror Transaction Expenses, (iii) Working Capital Loans and Merger Sub(iv) other Indebtedness as set out in Section 8.4(g) of the Acquiror Disclosure Letter;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viih) (A) issue any Acquiror Equity Securities or securities exercisable for or convertible into Acquiror Securities, Equity Securities (other than issuances of Acquiror Shares issuable upon, or subject to, the issuance exercise or settlement of the Aggregate Merger ConsiderationAcquiror Warrants), (B) grant any options, warrants or other equity-based awards with respect to Acquiror any Equity Securities not outstanding on the date hereof, or (C) other than pursuant to or as contemplated by the Transaction Documents, amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiii) take make any actionchange in its accounting principles or methods unless required by GAAP;
(j) form any Subsidiary;
(k) liquidate, dissolve, reorganize or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentotherwise wind-up its business and operations of Acquiror; or
(ixl) enter into any agreement to do any action prohibited under this Section 7.58.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 2 contracts
Samples: Business Combination Agreement (Bridgetown Holdings LTD), Business Combination Agreement (Bridgetown Holdings LTD)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s Common Stock or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s Common Stock or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) except as contemplated by the Equity Incentive Plan and ESPP, (A) enter into, adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement or (B) hire any employee or any other individual to provide services to Acquiror or its Subsidiaries following Closing;
(vii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, Person or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)) or (B) any indebtedness for borrowed money or guarantee (1) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, and (2) incurred between Acquiror and Merger Sub;
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub Subs to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Agreement, in connection with the Domestication) Domestication or as consented to by the Company Holder in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company Holder in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub Subs not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or the Merger SubSubs, except as contemplated by the Transaction Proposals and the Extension Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSubs’ capital stock, share capital or equity interests, (B) splity)split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Subs’ capital stock or equity interests, interests or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubSubs, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent either Corp Merger A or Corp Merger B from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub Subs (including, for the avoidance of doubt, (Ax) the CX Xxxxxx or anyone related by blood, marriage or adoption to the CX Xxxxxx, (y) Sponsor and (Bz) any Person in which the Sponsor or CX Xxxxxx has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the any Company or any of its Subsidiaries, the Companies’ Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, 100,000 or (By) incurred between Acquiror and Merger SubSubs;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements Documents or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)Acquiror;
(viiviii) Other than with respect to the Director RSU Grants, (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger SubSubs) to comply with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction ProposalsProposals or the Acquiror Warrant Amendment Proposal;
(ii) except as contemplated by the Transaction ProposalsProposals or the Acquiror Warrant Amendment Proposal, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (Atake any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of and the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Treasury Regulations;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) make or change any material election in respect of material Taxes, (A) amend, modify or otherwise change any filed material Tax Return, (B) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (C) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement, (D) settle any claim or assessment in respect of material Taxes, (E) surrender or allow to expire any right to claim a refund of material Taxes; or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(vi) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Acquiror’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business), (B) any Indebtedness for borrowed money or guarantee incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, and (C) any Indebtedness for borrowed money or guarantee incurred between Acquiror and Merger Sub;
(vii) other than with respect to the PIPE Investment or pursuant to Section 8.2(b), (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, except as set forth on Section 7.4(a) of the Acquiror Disclosure Letter, Acquiror shall, and shall cause Merger Sub to, except as required by Law, as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) Agreement, or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s equity interests or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s equity interests or Merger Sub Capital Stock or equity interestsStock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material TaxesTax election, (B) materially amend, modify modify, or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any material accounting method in respect of material Taxes, (D) enter into any material “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign non-U.S. Tax Law) with or any Governmental Authority in respect of material Tax sharing, indemnification, or similar agreement (other than any commercial Contract not primarily related to Taxes), (E) settle any material claim or assessment in respect of material Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a material refund of material Taxes Taxes, or (G) consent to any extension or waiver of the statute of limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to customary extensions of time to file the due date for filing a Tax Returns obtained in the ordinary course of businessReturn);
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations thereunder;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than (x) any indebtedness for borrowed money or guarantee (A) incurred from its Affiliates and stockholders in order to meet its reasonable capital requirements, with any such loans to be made only as reasonably required by the ordinary operation of Acquiror in due course of business consistent with past practice on a non-interest basis and otherwise on arm’s-length terms and conditions and repayable at the Closing, and in any event in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror 500,000 (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan Loan) or (y) incurred in the ordinary course of business)between Acquiror and Merger Sub;
(vii) (A) issue or promise to issue any Acquiror Securities or securities exercisable for or convertible into Acquiror SecuritiesSecurities (including any Incentive Shares), other than the issuance of the Aggregate shares of Acquiror Class A Common Stock comprising the Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.57.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During Except (i) as expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law (including for this purpose any Permitted COVID-19 Measures), (iii) as set forth on Section 6.5(a) of the Acquiror Disclosure Letter, (iv) for the incurrence of Acquiror Transaction Expenses or (v) as consented to by the Company in writing, during the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practiceOrdinary Course. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law, (iii) as set forth on Section 6.5(a) of the Acquiror Disclosure Letter, (iv) for the incurrence of Acquiror Transaction Expenses or (v) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, interests or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock (prior to the Effective Time) made as part of the Acquiror Share Redemptions;
(iii) merge or consolidate with or acquire (Aby purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(iv) make or change any material election in respect of material Taxes, (B) materially amendexcept to comply with applicable Law, modify or otherwise change settle or compromise any filed material Tax ReturnUnited States federal, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, locallocal or non-United States Tax liability, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained except in the ordinary course of business)Ordinary Course;
(ivv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (includingSub, for the avoidance other than any transaction or Contract pursuant to which Sponsor or any of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater)its Affiliates provides debt financing to Acquiror;
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Merger Sub or guaranty any debt securities of another Person, other than any indebtedness (a) Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
Sub or (vib) incur, assume debt financing provided by Sponsor or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)its Affiliates to Acquiror;
(vii) (A) make any change in its accounting principles, policies, procedures or methods unless required by an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants, or (B) engage in any conduct in a new line of business or engage in any material commercial activities (other than to consummate the transactions contemplated by this Agreement);
(viii) (A) issue any Acquiror Securities Capital Stock or securities exercisable for or convertible into Acquiror SecuritiesCapital Stock, other than the issuance of Acquiror Class A Common Stock pursuant to the Aggregate Merger Consideration, PIPE Subscription Agreements or this Agreement (including under Section 6.2) or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities Capital Stock not outstanding on the date hereofof this Agreement;
(ix) settle or agree to settle any litigation, action, proceeding or investigation before any court or governmental body or that imposes injunctive or other non-monetary relief on Acquiror or Merger Sub except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(A) hire, or otherwise enter into any employment agreement with, any person, (B) grant any material increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (CD) amend, modify materially amend any existing agreement with any current or waive any of the material terms former officer or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth thereindirector;
(viiixi) take make any actionloans, advances or capital contributions to, or knowingly fail investments in, any other Person (including to take any actionof its officers, where directors, agents or consultants, other than business expenses advanced to officers, directors or employees in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such action Persons, or failure enter into any “keep well” or similar agreement to act could reasonably be expected to prevent maintain the financial condition of any Person;
(xii) liquidate, dissolve, reorganize or otherwise wind-up the business and operations of Acquiror or Merger from qualifying for the Intended Tax TreatmentSub; or
(ixxiii) enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section 7.56.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to Sub to, comply in all material respects with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or material Contracts to which Acquiror or its Subsidiaries Merger Sub may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (CF Finance Acquisition Corp. III)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub, Blocker Sub and the Blocker Merger Subs to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with Investment), as reasonably required to effect the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub, Blocker Sub and the Blocker Merger Subs not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with as reasonably required to effect the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, or otherwise take any action, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Acquiror, Merger Sub, Blocker Sub or the Blocker Merger Subs, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s, Merger Sub’s, Blocker Sub’s or the Blocker Merger Sub Capital StockSubs’ capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s, Merger Sub’s, Blocker Sub’s or the Blocker Merger Sub Capital Stock Subs’ capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Acquiror, Merger Sub, Blocker Sub or the Blocker Merger Subs, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror Acquiror, Merger Sub, Blocker Sub or the Blocker Merger Sub Subs (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and among Acquiror, Merger Sub, Blocker Sub and the Blocker Merger Subs;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessbusiness or in connection with the transactions contemplated by this Agreement);
(viiviii) other than with respect to the PIPE Investment, (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub, Blocker Sub and the Blocker Merger Subs) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Aspirational Consumer Lifestyle Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause First Merger Sub and Second Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Additional Transactions or in connection with the Domestication) or the Ancillary Agreements, as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use reasonable best efforts to operate its business in the ordinary course and of business consistent with past practicepractice provided, that, notwithstanding anything to the contrary in this Agreement, Acquiror, First Merger Sub and Second Merger Sub may take any action, including the establishment of any (or maintenance of any existing) policy, procedure or protocol, in order to respond to the impact of COVID-19 or comply with any applicable COVID-19 Measures; provided, further, in each case, that (i) such actions are reasonably necessary, taken in good faith and taken to preserve the continuity of the business of Acquiror, First Merger Sub or Second Merger Sub and/or the health and safety of their respective employees and (ii) Acquiror, First Merger Sub or Second Merger Sub shall, unless prohibited by Law, inform the Company of any such actions prior to the taking thereof and shall consult with and consider in good faith any suggestions or modifications from the Company with respect thereto. Without limiting the generality of the foregoing, during the Interim Period, except as contemplated by this Agreement (including as contemplated by the Additional Transactions or in connection with the Domestication), the Ancillary Agreements or the Required Transaction, as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause First Merger Sub and Second Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror Acquiror, First Merger Sub or Second Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s, First Merger Sub’s or Second Merger Sub Sub’s Capital Stock, share capital or equity interests, (By) split, combine, reclassify or or, except as contemplated by the Transaction Proposals, otherwise amend any terms of any shares or series of Acquiror’s, First Merger Sub’s or Second Merger Sub Sub’s Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror Acquiror, First Merger Sub or Second Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;
(iii) (Ai) make make, change or change revoke any material election in respect of material TaxesTax election, (Bii) materially amend, modify or otherwise change any filed material Tax Return, (Ciii) adopt or request permission of any taxing authority to change any accounting method for Tax purposes or change any Tax accounting period in respect of material Taxes, (Div) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign Law) with any Governmental Authority in respect of material TaxesAuthority, (Ev) settle any claim or assessment in respect of a material amount of Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (Gvi) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material Taxes (other than pursuant to extensions amount of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Mergers from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror Acquiror, First Merger Sub or Second Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or (x) in support of the ordinary course operations of Acquiror or incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements, which are not, individually or in the aggregate, material to Acquiror, (y) pursuant to any Contract set forth on Section 5.15 of the Acquiror Disclosure Letter or (z) incurred between Acquiror, First Merger Sub or Second Merger Sub;
(vii) waive, release, compromise, settle or satisfy any pending or threatened material claim (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businesspending or threatened Action);
(viiviii) (A) issue any Acquiror Securities or securities any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable for into, or convertible into for, Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in respect of any Acquiror PIPE Investment substantially concurrently with the Closing, or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth thereinOriginal Agreement Date;
(viiiix) take conduct any actionactivities or enter into any Contracts directed toward or in contemplation of an alternative Business Combination to the Business Combination contemplated by this Agreement;
(x) withdraw any funds from the Trust Account, other than as permitted by Xxxxxxxx’s Governing Documents or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax TreatmentTrust Agreement; or
(ixxi) enter into any agreement agreement, in writing or otherwise, to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including First Merger Sub and Second Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein .
(c) Notwithstanding anything in this Section 7.5 or this Agreement to the contrary, (i) nothing shall be deemed to give to the Company, directly or indirectly, rights the right to control or direct the operations of Acquiror, First Merger Sub or Second Merger Sub and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, Acquiror, First Merger Sub or Second Merger Sub from using the funds held by Acquiror outside the Trust Account to pay any Acquiror expenses or liabilities or from otherwise distributing or paying over any funds held by Acquiror outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing Date in a manner which may violate the HSR ActClosing.
Appears in 1 contract
Samples: Business Combination Agreement (Freedom Acquisition I Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as otherwise explicitly contemplated by this Agreement (including as contemplated by the PIPE Investment Investment) or in connection with the Domestication) Ancillary Agreements or required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practiceOrdinary Course of Business. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror ShareholdersStockholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s Acquiror Capital Stock or Merger Sub Capital StockMembership Interests, or any other share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s Acquiror Capital Stock or Merger Sub Capital Stock Membership Interests or any other equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, except in the Ordinary Course of Business, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any reasonable action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a transfer to a corporation controlled by transferors within the meaning of Section 351 of the Code and the Treasury Regulations;
(v) other than as expressly required by the Sponsor Support and Lock-up Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) other than the issuance of any notes or other instruments in connection with a PIPE Investment, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, Acquiror or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course Ordinary Course of businessBusiness);
(vii) (A) except in connection with any PIPE Investment, issue any Acquiror Securities Capital Stock or securities exercisable for or convertible into Acquiror SecuritiesCapital Stock, other than the issuance of the portion of the Aggregate Merger ConsiderationConsideration that is payable in shares of Acquiror Common Stock (other than pursuant to the exercise of any Acquiror Rights and unit purchase option issued to Chardan Capital Markets, LLC) or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities Capital Stock not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.57.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated any Non-Redemption Transaction or Financing Transaction), the Ancillary Agreement or required by the PIPE Investment or in connection with the Domestication) Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s Capital Stock or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s Capital Stock or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required or contemplated by the Sponsor Support AgreementAgreement or in respect of any Working Capital Loans, Non-Redemption Transactions or Financing Transactions, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger Sub;
Sub or (viz) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)an aggregate not to exceed $2,500,000;
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in connection with a Non-Redemption Transaction or Financing Transaction, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.57.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Inpixon)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as otherwise explicitly contemplated by this Agreement (including as contemplated or the Ancillary Agreements or required by the PIPE Investment or in connection with the Domestication) Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or deniedconditioned), operate its business in the ordinary course and of business consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or deniedconditioned), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) other than as expressly required by the Sponsor Support and Lock-Up Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another PersonAcquiror, other than any indebtedness for borrowed money the incurrence or guarantee issuance of (A) incurred in promissory notes issued pursuant to Article Fifth, Section G of the ordinary course Amended and Restated Certificate of business consistent with past practice and in an aggregate amount not to exceed $100,000Incorporation of Acquiror, (B) incurred between Acquiror and Merger Sub;
the issuance of any convertible notes in connection with a PIPE Investment, (viC) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of indebtedness to fund the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan in amounts not to exceed $500,000 in the aggregate incurred in the ordinary course of business)) or (D) indebtedness to fund professional services and any expenses related thereto (including customary printing, electronic filing and data room hosting expenses) incurred in connection with negotiation, execution or consummation of the transactions contemplated hereby;
(vii) (A) except in connection with any PIPE Investment previously consented to by the Company or pursuant to Section 7.2(b), issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration (other than pursuant to the exercise of any Acquiror Rights and unit purchase option issued to Chardan Capital Markets, LLC) or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated expressly required or permitted by this Agreement or any Ancillary Agreement to which Acquiror or Merger Sub is a party (including as contemplated by the PIPE Investment or in connection with the Domestication) Investment), as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), use reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, Acquiror shall not, and shall cause Merger Sub not to, except (v) to reasonably comply with any applicable Pandemic Measures, (w) as otherwise expressly required or permitted by this Agreement or any Ancillary Agreement (including as contemplated by the PIPE Investment), (x) as required by Law, (y) as consented to by the Company in writing (which consent consent, other than with respect to clauses (i), (ii), (iv), (viii), (x), (xii), (xiii) and (xiv) (to the extent relating to the foregoing clauses) of this Section 8.5(a), shall not be unreasonably conditioned, withheld, delayed conditioned or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domesticationdelayed) or (z) as set forth in Section 8.5(a) of the Ancillary Agreements or as required by LawAcquiror Disclosure Letter:
(i) amend, restate, supplement or otherwise modify or waive any provision of (or seek any approval from the Acquiror ShareholdersStockholders to amend, to changerestate, supplement or otherwise modify or amend waive any provision of) the Trust Agreement, the Acquiror Warrants, the Warrant Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make pay, make, declare or declare set aside any dividend or other distribution to the shareholders of Acquiror or make any other distributions in respect of any Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock, share capital or equity interestsSub, (B) split, combine, reclassify or otherwise amend or modify any terms of any shares or series Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire (or offer to purchase, repurchase, redeem or otherwise acquire) any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests Equity Security of Acquiror or Merger Sub, other than a redemption of shares of to provide eligible Acquiror Class A Common Stock made as part of Stockholders with the opportunity to effect Acquiror Share RedemptionsRedemptions as required by Acquiror’s Governing Documents;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes), (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect of any material Tax attribute that would reasonably be expected to extensions give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) knowingly take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by in connection with any Working Capital Loan up to $1,500,000 and incurred for the Sponsor Support Agreementsole purpose of paying Acquiror Transaction Expenses that are due and payable prior to the Closing, enter into, renew renew, terminate, amend, restate, supplement or amend in otherwise modify or waive any material respect, provision of any transaction or Contract with an any Affiliate of Acquiror or Merger Sub (includingSub, for the avoidance of doubt, (A) the Sponsor and (B) any Acquiror Insider or any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) other than Acquiror Transaction Expenses or the incurrence of Working Capital Loans up to $1,500,000 incurred for the sole purpose of paying Acquiror Transaction Expenses that are due and payable prior to the Closing, incur, assume or otherwise become liable for (whether directly or indirectly, absolutely or contingently or otherwise) any Indebtedness or Liability or guarantee any Indebtedness or Liability of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Subsidiaries or guaranty guarantee any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and not exceeding $100,000 in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Subthe aggregate;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (A) issue any Acquiror Equity Securities or securities exercisable for or convertible into Acquiror Securitiesof Acquiror, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Equity Securities of Acquiror Securities not outstanding on the date hereof, hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant AgreementWarrant, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take incorporate, form or organize any actionnew direct or indirect Subsidiary of Acquiror or engage in any new line of business that is materially different from the general nature of the businesses of Acquiror and Merger Sub as of the date hereof;
(ix) enter into, modify or amend in any material respect or terminate (other than by expiration in accordance with the terms of any Contract without an auto-renewal or similar term) any material Contract, in each case, other than in the ordinary course of business;
(x) acquire by merger or consolidation with, or knowingly fail to take merge or consolidate with, or purchase substantially all or a material portion of the assets of, any actioncorporation, partnership, association, joint venture or other business organization or division thereof;
(xi) waive, release, settle, compromise or otherwise resolve any Action, except in the ordinary course of business or where such action waivers, releases, settlements or failure compromises involve only the payment of monetary damages in an amount less than $5,000,000 (net of any amounts covered by insurance) in the aggregate;
(xii) authorize, recommend, propose or announce an intention to act could reasonably be expected adopt a plan of, or otherwise enter into or effect any, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Acquiror or Merger Sub (other than the Merger);
(xiii) except as required by GAAP (or any interpretation thereof, including any new or changes to prevent existing interpretations and guidance issued by the Merger from qualifying for the Intended Tax TreatmentSEC or other Governmental Authority) or applicable Law, make any change in accounting methods, principles or practices; or
(ixxiv) enter into any agreement to do take any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), comply with each of the agreements entered into in connection with the IPO, operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s share capital or equity interests or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s share capital or equity interests or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (BA) materially amend, modify or otherwise change any filed material Tax Return, (CB) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DC) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign non-U.S. Law) with any Governmental Authority in respect of material Taxes, or enter into any Tax sharing or similar agreement (Eother than any customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes), (D) settle any claim or assessment in respect of material Taxes, (FE) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (GF) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5% %) or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000250,000, (B) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) take any actionacquire by merger or consolidation with, or knowingly fail merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, partnership, association, joint venture or other business organization or division thereof;
(x) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Acquiror or its Subsidiaries (other than the Merger);
(xi) make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or applicable Law;
(xii) terminate without replacement or amend in a manner detrimental to take Acquiror and its Subsidiaries, taken as a whole, any actionmaterial insurance policy insuring the business of Acquiror and its Subsidiaries;
(xiii) subject to Section 6.6, waive, release, settle, compromise or otherwise resolve any inquiry, investigation, claim, Action, litigation or other Legal Proceedings, except in the ordinary course of business or where such action waivers, releases, settlements or failure to act could reasonably be expected to prevent compromises are covered by insurance or involve only the Merger from qualifying for payment of monetary damages in an amount less than $250,000 in the Intended Tax Treatmentaggregate; or
(ixxiv) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Acquiror’s shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessbusiness in an aggregate amount not to exceed $1,500,000);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Stock Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take grant or establish any actionform of compensation or benefits to any current or former employee, officer, director, individual independent contractor or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentother individual service provider of Acquiror; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except (i) as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, (including ii) as contemplated required by the PIPE Investment or in connection with the DomesticationLaw, (iii) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (iv) as set forth in Section 8.4 of the Acquiror Disclosure Letter, (A) use reasonable best efforts to operate its business in the ordinary course and consistent with past practicepractice and (B) comply in all material respects with its Governing Documents. Without limiting the generality of the foregoing, except as set forth in Section 8.4 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements other Transaction Documents or as required by Law:
(ia) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubAcquiror, except as contemplated by the Transaction Proposals;
(iib) except as contemplated merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the Transaction Proposalsassets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(Ac) (i) make or declare any dividend or distribution to the its shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interestsits Equity Securities, (Bii) splitsubdivided, combineconsolidate, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interestsits Equity Securities, or (Ciii) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubEquity Securities, other than a redemption of shares redemptions of Acquiror Class A Common Stock Ordinary Shares made as part of the Acquiror Share Redemptions;
(iiid) (Ai) make or change any material election in respect of material Taxes, (Bii) materially amend, modify or otherwise change any filed material Tax Return, (Ciii) adopt or request permission of any taxing Tax authority to change any accounting method in respect of material Taxes, (Div) enter into any “closing agreements” as described in Section 7121 of the Code (agreement or any similar provision of state, local, or foreign Law) with any Governmental Authority other binding written agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (Ev) settle any claim or assessment in respect of material Taxes, (Fvi) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, or (Gvii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(ive) except as contemplated by this Agreement, the Transaction Documents, and the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(f) other than as expressly required or contemplated by the Sponsor Support AgreementAgreement or any other Transaction Document, enter into, renew or amend in any material respect, any transaction or Contract with Sponsor or an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, including (A) the Sponsor and (Bi) any Person in which the Sponsor has a direct or indirect legal, contractual legal or beneficial ownership interest of five percent (5% %) or greatermore and (ii) any Person who has a direct or indirect legal or beneficial ownership interest of five percent (5%) or more in the Sponsor);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness Contract relating to a Working Capital Loan, any Contract related to Acquiror Transaction Expenses, any Contract relating to the non-redemption of Acquiror Ordinary Shares or any other Contract set out in the Acquiror Disclosure Letter;
(g) incur, guarantee or otherwise become liable for borrowed money or guarantee any Indebtedness, other than (Ai) liabilities incurred in the ordinary course of business consistent with past practice and in an aggregate amount amount, individually or in the aggregate, not to exceed $100,000, (Bii) incurred between any Acquiror Transaction Expenses, (iii) Working Capital Loans and Merger Sub(iv) other Indebtedness as set out in Section 8.4(g) of the Acquiror Disclosure Letter;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (Ai) issue any Acquiror Equity Securities or securities exercisable for or convertible into Acquiror Securities, Equity Securities (other than issuances of Acquiror Ordinary Shares issuable upon, or subject to, the issuance exercise or settlement of the Aggregate Merger ConsiderationAcquiror Warrants), (Bii) grant any options, warrants or other equity-based awards with respect to Acquiror any Equity Securities not outstanding on the date hereof, or (Ciii) other than pursuant to or as contemplated by the Transaction Documents, amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiii) take make any actionchange in its accounting principles or methods unless required by GAAP;
(j) form any Subsidiary;
(k) liquidate, dissolve, reorganize or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentotherwise wind-up its business and operations of Acquiror; or
(ixl) enter into any agreement to do any action prohibited under this Section 7.58.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Business Combination Agreement (Bukit Jalil Global Acquisition 1 Ltd.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as explicitly contemplated by this Agreement (including as contemplated by any of the PIPE Investment Subscription Agreements, any of the Additional Subscription Agreements or in connection with the DomesticationPIPE Investment) or the Ancillary Agreements, as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as explicitly contemplated by this Agreement (including as contemplated by any of the Subscription Agreements, any of the Additional Subscription Agreements or in connection with the PIPE Investment) or the Ancillary Agreements, as required by Law or as consented to by the Company in writing (which consent consent, except with respect to clause (xii), shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) change, modify or amend (or seek any approval from the Acquiror Shareholders, to change, modify or amend Shareholders to) the Trust Agreement or the Governing Documents of Acquiror or Merger SubAcquiror, except as contemplated by the Transaction Proposals;
(ii) withdraw any funds from the Trust Account, other than as permitted by the Trust Agreement;
(iii) except as contemplated by the Transaction ProposalsProposals (including any adjustment made with respect to the Swiss NewCo Warrants in the Warrant Conversion), (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stockcapital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubAcquiror, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iiiiv) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror (including, for the avoidance of doubt, (x) the Sponsor and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5%) or greater);
(v) except in the ordinary course of business and consistent with past practice (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes, (E) enter into any material Tax sharing or similar agreement (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes), (F) settle any claim or assessment in respect of material Taxes, (FG) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (GH) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(ivvi) other than as expressly required by take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater)Intended Tax Treatment;
(vvii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently incur or otherwise) assume any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (x) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements Agreements, (y) any adjustment made with respect to the Swiss NewCo Warrants in the Warrant Conversion or (z) in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, subject to Section 8.4(a)(xii) below);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance (x) in respect of the Aggregate Merger ConsiderationPIPE Investment, including for the avoidance of doubt, Acquiror Class A Common Stock, warrants or other securities pursuant to an Additional Subscription Agreement, and (y) to effect a transfer or agreement to transfer (which may be effectuated as a forfeiture to Acquiror and reissuance by Acquiror) of Acquiror Class A Common Stock or Acquiror Class B Common Stock by Sponsor to an investor pursuant to a Subscription Agreement or an Additional Subscription Agreement, in the case of an Additional Subscription Agreement, entered into with the prior written consent of the Company, not to be unreasonably withheld, conditioned or delayed, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, except as provided for in clause (x) and (y) above, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth thereintherein except for any adjustment made with respect to the Swiss NewCo Warrants in the Warrant Conversion;
(viiiix) take any actionacquire by merger or consolidation with, or knowingly fail merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, partnership, association, joint venture or other business organization or division thereof;
(x) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(xi) change Acquiror’s methods of accounting in any material respect, other than changes that are required by any securities Law or any order, directive, guideline, recommendation, statement, comment or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company;
(xii) (A) incur any Acquiror Transaction Expenses resulting in aggregate Acquiror Transaction Expenses exceeding the Acquiror Transaction Expenses Cap after such incurrence, or (B) use any proceeds from any Working Capital Loan issued following the date hereof for any expenses other than Specified Acquiror Transaction Expenses and Customary Operations Expenses;
(xiii) incur Working Capital Loans other than the incurrence of Working Capital Loans such that the aggregate outstanding Working Capital Loans (including those incurred prior to take any action, where the date of this Agreement) do not exceed $3,500,000 in the aggregate after such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentincurrence; or
(ixxiv) enter into any agreement to do any action prohibited under this Section 7.58.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) use commercially reasonably efforts to materially comply with, and continue materially performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Business Combination Agreement (Cohn Robbins Holdings Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub its Subsidiaries, including the Purchasers to, except as otherwise contemplated by this Agreement (including as contemplated by the Section 7.9, PIPE Investment Investment, the Forward Purchase Transaction or in connection with the Domestication) ), the Ancillary Agreements, or the Obagi Merger Agreement and the transaction contemplated hereby and thereby or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub the Purchasers not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment Investment, the Forward Purchase Transaction or in connection with the Domestication) or ), the Ancillary Agreements Agreements, the Obagi Merger Agreement and the transaction contemplated hereby and thereby or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Acquiror’s shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Subthe Purchasers, except (A) as contemplated by the Transaction ProposalsProposals or (B) as otherwise required by applicable Law;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stockthe Purchasers’ common stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock the Purchasers’ common stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Subthe Purchasers, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub the Purchasers (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000500,000, (B) incurred between Acquiror and Merger Subthe Purchasers;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessbusiness in an aggregate amount not to exceed $3,500,000.00, including amounts under Working Capital Loans outstanding as of the date hereof);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5; or
(ix) amend or waive any provision of the Obagi Merger Agreement or any Ancillary Documents (solely for purposes of this Section 7.5(ix) as such term is defined in the Obagi Merger Agreement in a manner that is materially adverse to the Company or any of its Subsidiaries.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Subthe Purchasers) to comply with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, except (w) as set forth in Section 7.5 of the Acquiror shallDisclosure Letter, and shall cause Merger Sub to, except (x) as contemplated by this Agreement (including as in connection with any financing arrangement or efforts contemplated by the PIPE Investment Section 8.6 or in connection with the Domestication) or the Ancillary Agreements, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (z) as required by Law, Acquiror shall, and shall cause Merger Sub to, operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except (w) as set forth in Section 7.5 of the Acquiror Disclosure Letter, (x) as contemplated by this Agreement (including in connection with any financing arrangement or efforts contemplated by Section 8.6 or in connection with the Domestication) or the Ancillary Agreements, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (z) as required by Law, Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s share capital or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s share capital or Merger Sub Capital Stock or equity interestsStock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support AgreementAgreement or in connection with any Working Capital Loan, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) except as contemplated by the Equity Incentive Plan or required by applicable Law, enter into, adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement that would cover employees of Acquiror or its Subsidiaries following the Closing;
(vii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or (B) any indebtedness for borrowed money or guarantee (x) incurred in support of the ordinary course operations of business consistent with past practice and in an aggregate amount not to exceed $100,000, (y) incurred between Acquiror and Merger Sub or (which the parties agree shall include any Indebtedness z) in respect of any Working Capital Loan incurred in the ordinary course of business)an aggregate not to exceed $2,500,000;
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance (1) of the Aggregate Merger Stock Consideration, (2) of Acquiror Options, Acquiror RSUs and Acquiror RSAs, in each case in accordance with Section 3.3, and (3) in connection with the Forward Purchase Agreement or any financing arrangement or efforts contemplated by Section 8.6, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE FPA Investment or in connection with the DomesticationPIPE Investment) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practiceof business. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE FPA Investment or in connection with the DomesticationPIPE Investment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s capital stock or any Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s capital stock or any Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Pre-Transaction Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, (A) any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor Sponsor, (y) Northern Genesis Capital II LLC and (Bz) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5% %) or greater)) or (B) any transaction or Contract with any counterparty to a Forward Purchase Agreement, to the extent related in any respect to Acquiror;
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty guarantee any debt securities of another Person, other than (A) Working Capital Loans and (B) any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (By) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessLoan);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, the incurrence of Working Capital Loans and issuance of Acquiror Working Capital Warrants to Sponsor, and the issuance of Acquiror Securities pursuant to the Subscription Agreements and the Forward Purchase Agreements, (B) grant any options, warrants options or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to to, comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Northern Genesis Acquisition Corp. II)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated any Non-Redemption Transaction or Financing Transaction), the Ancillary Agreement or required by the PIPE Investment or in connection with the Domestication) Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s Capital Stock or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s Capital Stock or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required or contemplated by the Sponsor Support AgreementAgreement or in respect of any Working Capital Loans, Non-Redemption Transactions or Financing Transactions, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger Sub;
Sub or (viz) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)an aggregate not to exceed $2,500,000;
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in connection with a Non-Redemption Transaction or Financing Transaction, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except (w) as contemplated otherwise explicitly required or permitted by this Agreement or any Ancillary Agreement to which Acquiror or Merger Sub is a party (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment), (x) or as required by Law, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied)delayed) or (z) as set forth in Section 8.5(a) of the Acquiror Disclosure Letter, use commercially reasonable efforts to (i) operate its business in the ordinary course and consistent (ii) preserve the present business and operations and goodwill of the Acquiror and Merger Sub; provided, however, that no action by the Company with past practicerespect to matters specifically addressed by any clause in the immediately following sentence shall be deemed a breach of this sentence unless such action would constitute a breach of such specific clause in the immediately following sentence. Without limiting the generality of the foregoing, Acquiror shall not, and shall cause Merger Sub not to, except (w) as otherwise required or permitted by this Agreement or any Ancillary Agreement (including as contemplated by the PIPE Investment), (x) as required by Law, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domesticationdelayed) or (z) as set forth in Section 8.5(a) of the Ancillary Agreements or as required by LawAcquiror Disclosure Letter:
(i) amend, restate, supplement or otherwise modify or waive any provision of (or seek any approval from the Acquiror ShareholdersStockholders to amend, to changerestate, supplement or otherwise modify or amend waive any provision of) the Trust Agreement, the Acquiror Warrants, the Warrant Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make pay, make, declare or declare set aside any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock, share capital or equity interestsSub, (B) split, combine, reclassify or otherwise amend or modify any terms of any shares or series Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire (or offer to purchase, repurchase, redeem or otherwise acquire) any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests Equity Security of Acquiror or Merger Sub, other than a redemption of shares of to provide eligible Acquiror Class A Common Stock made as part of Stockholders with the opportunity to effect Acquiror Share RedemptionsRedemptions as required by Acquiror’s Governing Documents;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign non-U.S. Law) with any Governmental Authority in respect of a material amount of Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes), (E) settle or compromise any material Tax liability or claim or assessment in respect of a material amount of Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of a material Taxes or amount of Taxes; (G) consent extend or waive any statute of limitations applicable to any extension period within which a claim, assessment or waiver reassessment of the limitation period applicable a material amount of Taxes may be issued or in respect of any material Tax attribute that would reasonably be expected to give rise to any claim or assessment in respect of Taxes; or (H) incur any liability for a material amount of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew renew, terminate, amend, restate, supplement or amend in otherwise modify or waive any material respect, provision of any transaction or Contract (including the Insider Letter) with an any Affiliate of Acquiror or Merger Sub (includingSub, for the avoidance of doubt, (A) the Sponsor and (B) any Acquiror Insider or any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) other than Acquiror Transaction Expenses, incur, assume or otherwise become liable for (whether directly or indirectly, absolutely or contingently or otherwise) any Indebtedness or Liability or guarantee any Indebtedness or Liability of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Subsidiaries or guaranty guarantee any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and not exceeding $100,000 in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Subthe aggregate;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (A) issue any Acquiror Equity Securities or securities exercisable for or convertible into Acquiror Securitiesof Acquiror, other than the issuance of the Aggregate Merger Equity Value Consideration, the Additional Acquiror Shares and the Aggregate Earn-Out Value Consideration, (B) grant any options, warrants or other equity-based awards with respect to Equity Securities of Acquiror Securities not outstanding on the date hereof, of this Agreement or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant AgreementWarrant, including any amendment, modification or reduction of the warrant price set forth therein;
(viiivii) take waive, release, settle, compromise or otherwise resolve any actionAction, or knowingly fail to take any action, except where such action waivers, releases, settlements or failure to act could reasonably be expected to prevent compromises involve only the Merger from qualifying for payment of monetary damages in an amount less than $500,000 (net of any amounts covered by insurance) in the Intended Tax Treatmentaggregate; or
(ixviii) enter into any agreement to do take any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (B. Riley Principal 150 Merger Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Investment), the Ancillary Agreements or in connection with the Domestication) required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(iv) other than as expressly required by the Sponsor Side Letter, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (x) the Sponsor and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) (A) make make, change, or change revoke any material election in respect of material TaxesTax election, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than any Contract solely between Acquiror and Merger Sub or any customary commercial Contract (or Contract entered into in the ordinary course of business) not primarily related to Taxes), (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Acquiror’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business), (B) any Indebtedness for borrowed money or guarantee incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, and (C) any Indebtedness for borrowed money or guarantee incurred between Acquiror and Merger Sub;
(vii) other than with respect to the PIPE Investment or pursuant to Section 8.2(b), (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub Subs to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub Subs not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror ShareholdersStockholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubSubs, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or First Merger Sub Capital StockStock or Second Merger Sub Units, share capital or equity interests, ; (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or First Merger Sub Capital Stock or Second Merger Sub Units or equity interests, ; or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubSubs, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, ; (B) materially amend, modify or otherwise change any filed Tax Return in a manner that is material Tax Return, to Acquiror and Merger Subs; (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, ; (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes, ); (E) settle or compromise any claim or assessment in respect of material Taxes, ; (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; (G) file any Tax Return in a manner that is inconsistent with the past practices of Acquiror and Merger Subs; or (GH) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or any Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Acquiror’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and to fund Acquiror Transaction Expenses (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business in an aggregate amount not to exceed $100,000, 1,500,000); or (B) incurred between Acquiror and Merger SubSubs;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessbusiness in an aggregate amount not to exceed $1,500,000);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, Consideration and other than as contemplated in the Insiders Letter Agreement; (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, ; or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) take any actionenter into, amend or modify, or knowingly fail agree to take pay any actiondiscretionary amount under, where such action any Contract with any broker, finder, or failure investment bank related to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax TreatmentTransaction; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger SubSubs) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shallexcept (i) as required by Law, and shall cause Merger Sub to(ii) as expressly set forth in, except as contemplated by or required by, this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationPIPE Investment and the Investor Investment) or the Ancillary Agreements or (iii) as otherwise consented to in writing by the Company in writing (Company, which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to, as applicable, (x) operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing practice and (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall y) not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (Atake any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of and the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Treasury Regulations;
(iv) enter into, or permit any of the assets owned or used by it to become bound by, any Contract, other than as expressly required in connection with the Transactions;
(v) other than as expressly required by the Sponsor Support AgreementAgreement and other than the entry into the Subscription Agreement entered into on the date hereof (and agreements and matters incidental and ancillary thereto) or otherwise in accordance with Section 7.10 by the Sponsor PIPE Investor or its Affiliates, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater)) or with M-III Partners, LP, Brigade Capital Management, LP or any of their respective managed funds and accounts;
(vvi) make, change or revoke any material election concerning Taxes, adopt or change any material accounting method concerning Taxes, adopt or change any Tax accounting period, amend any material Tax Return or claim for a refund of a material amount of Taxes, enter into any Tax closing agreement or seek any Tax ruling, settle, compromise or otherwise dispose of any material Tax proceeding, fail to pay any material Tax when due (including any material estimated Tax payments), surrender any claim for a refund of a material amount of Taxes, waive or extend the statute of limitations in respect of any material amount of Taxes or material Tax Return or prepare or file any material Tax Return in a manner inconsistent in any material respect with applicable past practices;
(vii) make any changes with respect to its financial accounting policies or procedures, except as required by changes in Law or GAAP;
(viii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Acquiror’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, indebtedness or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement Transactions and the Ancillary Agreements (B) any indebtedness for borrowed money or in support of the ordinary course operations of guarantee incurred between Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)and Merger Sub;
(viiix) other than with respect to the PIPE Investment or the Investor Investment, (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixx) waive, release, compromise, settle or satisfy any pending or threatened material claims (which shall include any pending or threatened Action) or compromising or settling any material liability;
(xi) (A) fail to maintain its existence or acquire by merger or consolidation with, or merge or consolidate with, or purchase a material portion of the assets or equity of, any corporation, partnership, limited liability company, association, joint venture or other business organization or division thereof; or (B) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Acquiror or its Subsidiaries (other than the Transactions); or
(xii) enter into any agreement or commitment by the Acquiror or its Subsidiaries (including Merger Sub) to do any action prohibited under this Section 7.5.
(b) During the Interim Period, (i) Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein , (ii) Acquiror shall be deemed cause Merger Sub to give perform when due its obligations under this Agreement and to consummate the Merger pursuant to the Company, directly or indirectly, rights terms and subject to control or direct the operations of conditions set forth in this Agreement and (iii) Acquiror shall ensure that Merger Sub prior to the Closing Date in a manner which may violate the HSR ActEffective Time shall not conduct any business, incur or guarantee any indebtedness or make any investments, other than as specifically contemplated by this Agreement.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, except as set forth on Section 7.5(a) of the Acquiror Disclosure Letter or as reasonably necessary or advisable in connection with the Acquiror’s actions to resolve the Warrant Accounting Issue, Acquiror shall, and shall cause Merger Sub to, except as required by Law, as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Shareholders or make any other distributions in respect of any of Acquiror’s equity interests or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s equity interests or Merger Sub Capital Stock or equity interestsStock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (BA) materially amend, modify or otherwise change any filed income or other material Tax Return, (CB) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DC) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business, the principal subject of which is not Taxes), (ED) settle any claim or assessment in respect of material Taxes, (FE) affirmatively knowingly surrender or allow to expire any right to claim a refund of material Taxes or Taxes, (GF) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions in connection with a customary extension of time to file the due date for filing a Tax Returns Return obtained in the ordinary course of business), (G) request a ruling or similar guidance from any Governmental Authority with respect to any Tax matter, or (H) file any income or other material Tax Return in a manner inconsistent with past practice;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations thereunder;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than (x) any indebtedness for borrowed money or guarantee (A) incurred from its Affiliates and stockholders in order to meet its reasonable capital requirements, with any such loans to be made only as reasonably required by the ordinary operation of Acquiror in due course of business consistent with past practice on a non-interest basis and otherwise on arm’s-length terms and conditions and repayable at the Closing, and in any event in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror 500,000 (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan Loan) or (y) incurred in the ordinary course of business)between Acquiror and Merger Sub;
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the shares of Domesticated Acquiror Common Stock comprising the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as explicitly contemplated by this Agreement (including as contemplated by any of the PIPE Investment Subscription Agreements or in connection with the PIPE Investment or Domestication) or the Ancillary Agreements, as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practicepractice (which shall include actions (or inactions) required to comply with any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester or similar Law, order, directive or guidelines promulgated by any Governmental Authority in connection with or in response to COVID-19). Without limiting the generality of the foregoing, except as explicitly contemplated by this Agreement (including as contemplated by any of the Subscription Agreements or in connection with the PIPE Investment or Domestication) or the Ancillary Agreements, as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock Ordinary Shares made as part of the Acquiror Share Redemptions;
(iii) (Atake any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision and the Treasury Regulations; Table of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);Contents
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew renew, amend or amend terminate in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) make or change any material election in respect of material Taxes, (A) amend, modify or otherwise change any filed material Tax Return, (B) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (C) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement, (D) settle any claim or assessment in respect of material Taxes, (E) surrender or allow to expire any right to claim a refund of material Taxes; or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(vi) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently incur or otherwise) assume any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) subject to Section 8.4(c) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business), (B) any Indebtedness for borrowed money or guarantee in an aggregate amount not to exceed $100,000, in the ordinary course of business and on commercially reasonable terms, and (C) any Indebtedness for borrowed money or guarantee incurred between Acquiror and Merger Sub;
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in respect of the PIPE Investment, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Public Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly (A) fail to take maintain its existence or (B) adopt or enter into a plan of complete or partial liquidation or dissolution;
(ix) make any actionmaterial change in financial accounting methods, where such action principles or failure practices, except insofar as may have been required by a change in (or pronouncement by a competent authority with respect to) GAAP or applicable Law, including pursuant to act could reasonably be expected to prevent standards, guidelines and interpretations of the Merger from qualifying for SEC or its staff, the Intended Tax TreatmentFinancial Accounting Standards Board or any similar organization;
(x) engage in any new line of business; or
(ixxi) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries, including Merger Sub Sub, to, except otherwise as contemplated by this Agreement (including as contemplated by Section 7.11, the PIPE Investment Investment, the Forward Purchase Transaction or in connection with the Domestication) ), the Ancillary Agreements, or the Milk Equity Purchase Agreement and the transaction contemplated hereby and thereby or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause its Subsidiaries, including Merger Sub Sub, not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment Investment, the Forward Purchase Transaction or in connection with the Domestication) or ), the Ancillary Agreements Agreements, the Milk Equity Purchase Agreement and the transaction contemplated hereby and thereby or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Acquiror’s shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except (A) as contemplated by the Transaction ProposalsProposals or (B) as otherwise required by applicable Law;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Common Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Common Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000100,000.00, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessbusiness in an aggregate amount not to exceed $3,500,000.00, including amounts under Working Capital Loans outstanding as of the date hereof);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Obagi Stock Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5; or
(ix) amend or waive any provision of the Milk Equity Purchase Agreement, including the exhibits attached thereto, or any Ancillary Agreement (solely for purposes of this Section 7.5(ix) as such term is defined in the Milk Equity Purchase Agreement), or enter into any new agreements with Milk, the equityholders of Milk or any of their respective Affiliates, in each case, in a manner that is materially adverse to the Company or any of its Subsidiaries.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (BA) materially amend, modify or otherwise change any filed material Tax Return, (CB) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DC) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (ED) settle any claim or assessment in respect of material Taxes, (FE) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (GF) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. II)
Acquiror Conduct of Business. (a) During Except (i) as expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law (including for this purpose any Permitted COVID-19 Measures), Governmental Authority, or any Contract to which any of Acquiror or Merger Sub is a party, (iii) as set forth on Section 6.4(a) of the Acquiror Disclosure Letter, (iv) for the incurrence of Acquiror Transaction Expenses, (v) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied and in any event, such consent shall be deemed given if Xxxxxxxx has not affirmatively denied consent in writing within five (5) Business Days of receipt of the Company’s written request for consent). or (vi) as a commercially reasonable response to generally applicable business conditions (to the extent affecting the Ordinary Course behavior of Acquiror or Merger Sub, if applicable), during the Interim Period, Acquiror shall, and shall cause Merger Sub to, operate its business in the Ordinary Course and to conduct no business other than complying with applicable Law and performing its obligations under this Agreement, and activities related to its ongoing filings and other Ordinary Course actions in connection with maintaining its organization and existence as a blank check public company, activities directed toward the Transactions, and seeking extension(s) of the Expiration Date in order to consummate a Business Combination under its Governing Documents. Without limiting the generality of the foregoing, except (i) as contemplated expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law (including for this purpose any Permitted COVID-19 Measures), (iii) as contemplated by set forth on Section 6.4(a) of the PIPE Investment or in connection with Acquiror Disclosure Letter, (iv) for the Domesticationincurrence of Acquiror Transaction Expenses, (v) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied, and in any event, such consent shall be deemed given if Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of Acquiror’s written request for consent), operate its or (vi) as a commercially reasonable response to generally applicable business in conditions (to the ordinary course and consistent with past practice. Without limiting extent affecting the generality Ordinary Course behavior of the foregoingAcquiror or Merger Sub, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or deniedif applicable), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction ProposalsProposals and except as required for Acquiror to obtain an extension of the date of expiration of the time period for Acquiror to consummate a Business Combination pursuant to the Acquiror Governing Documents and the Trust Agreement (such date of expiration, the “Expiration Date” and such extension, the “Extension”);
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, interests or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock (prior to the Effective Time) made as part of the Acquiror Share RedemptionsRedemptions or in connection with any Extension;
(iii) merge or consolidate with or acquire (Aby purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(iv) make or change any material election in respect of material TaxesTaxes in a manner inconsistent with past practice, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “settlement agreement, closing agreements” as described in Section 7121 agreement or waiver or surrender of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority claim for refund in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time Taxes, in each case, except to file Tax Returns obtained in the ordinary course of business)comply with applicable Law;
(ivv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (includingSub, for other than any transaction or Contract pursuant to which Sponsor or any of its Affiliates provides debt financing to Acquiror. For the avoidance of doubt, (Ai) no such debt financing shall be provided in connection with any contributions to the Sponsor Trust Account; and (Bii) all such debt financing must be repayable for the amount of the loan and shall not include any Person in which the Sponsor has a direct interest, premium or indirect legal, contractual other fee or beneficial ownership interest of 5% or greater)expense;
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Merger Sub or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money provided by Sponsor or guarantee (A) incurred in any of its Affiliates to Acquiror to fund the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course ongoing operations of Acquiror or, subject to the limitations in Section 6.4(a)(vi) of the Acquiror Disclosure Letter, in connection with the extension of the Expiration Date. For the avoidance of doubt, (which i) except as set forth on Section 6.4(a)(vi) of the parties agree Acquiror Disclosure Letter, no such Indebtedness shall be incurred in connection with any contributions to the Trust Account; and (ii) all such Indebtedness must be repayable for the amount of the loan and shall not include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)interest, premium or other fee or expense;
(vii) make any material change in its accounting principles or methods unless required by GAAP;
(A) issue any Acquiror Securities Capital Stock or securities exercisable for or convertible into Acquiror SecuritiesCapital Stock, other than the issuance of Acquiror Class A Common Stock pursuant to the Aggregate Merger Consideration, Forward Purchase Contract or this Agreement or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities Capital Stock not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant this Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) take settle or agree to settle any litigation, action, proceeding or knowingly fail to take investigation before any action, court or governmental body or that imposes injunctive or other non-monetary relief on Acquiror or Merger Sub except where such action waivers, releases, settlements or failure to act could reasonably be expected to prevent compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(x) liquidate, dissolve, reorganize or otherwise wind-up the business and operations of Acquiror or Merger from qualifying for the Intended Tax TreatmentSub; or
(ixxi) enter into any agreement to do any action prohibited under this Section 7.56.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to Sub to, comply in all material respects with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or material Contracts to which Acquiror or its Subsidiaries Merger Sub may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Investment) or in connection with the Domestication) Ancillary Agreements or required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and of business consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror ShareholdersStockholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes, other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger, taken together with the Second Merger, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub IntermediateCo to, except as contemplated by this Agreement Agreement, as required by applicable Law (including as contemplated by the PIPE Investment or in connection with the Domestication) or for this purpose any COVID-19 Measures), as consented to by the Company Grosvenor Holders in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or as set forth on Section 6.5(a) of the Acquiror Disclosure Letter, operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company Grosvenor Holders in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or as set forth on Section 6.5(a) of the Acquiror Disclosure Letter, Acquiror shall not, and Acquiror shall cause Merger Sub IntermediateCo not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubIntermediateCo, except as contemplated by the Transaction Proposals and the Extension Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockIntermediateCo’s capital stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock IntermediateCo’s capital stock or equity interests, interests or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubIntermediateCo, other than a redemption of shares of Acquiror Class A Common Stock (prior to the Effective Time) made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub IntermediateCo (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, IntermediateCo or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (By) incurred between Acquiror and Merger SubIntermediateCo (provided, that this Section 6.5(a)(v) shall not prevent the Acquiror from borrowing funds necessary to finance its ordinary course administrative costs and expenses and transaction expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including any costs and expenses necessary for the Extension, up to aggregate additional Indebtedness during the Interim Period of $1,000,000) and the taking of the actions permitted in this parenthetical shall not be deemed a breach to the extent such actions conflict with any other provision of this Section 6.5(a));
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements Documents or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)Acquiror;
(vii) (A) issue any Acquiror Securities Common Stock or securities exercisable for or convertible into Acquiror SecuritiesCommon Stock, other than the issuance of the Aggregate Merger ConsiderationAcquiror Common Stock pursuant to this Agreement, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities Common Stock not outstanding on the date hereof, hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.56.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger SubIntermediateCo) to comply in all material respects with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or material Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) Section 7.9), or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationSection 7.9) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubAcquiror, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interestsstock, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interestscapital stock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests stock of Acquiror or Merger SubAcquiror, other than as provided in the Agreement or a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support AgreementAgreement or in respect of any Working Capital Loans, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (By) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)an aggregate not to exceed $2,500,000;
(vii) other than as provided in the Agreement, (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) use reasonable best efforts to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Stratim Cloud Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except (i) as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements, (ii) as required by Law (including COVID-19 Measures), or (iii) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use its reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or Investment), the Ancillary Agreements or the Forward Purchase Agreement or as required by Law:Law (including COVID-19 Measures):
(i) seek any approval from the Acquiror ShareholdersStockholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make make, declare, set aside, establish a record date for or declare pay any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Stockholder Redemptions;
(iii) (A) make (except on an originally filed Tax Return) or change any material election in respect of material Taxes, (B) materially amend, or modify or otherwise change any filed material Tax Return, (C) adopt change or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action where such action could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(v) other than as expressly required by the Sponsor Support Agreement or the Forward Purchase Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) enter into, amend, modify or terminate (other than expiration in accordance with its terms) any material Contract to which Acquiror or Merger Sub is a party, including any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(vii) sell, assign, transfer, convey, lease or otherwise dispose of, or subject to a Lien, any material tangible assets or properties of Acquiror or its Subsidiaries or acquire (whether by merger or consolidation or the purchase of a substantial portion of the equity in or assets of or otherwise) any other Person;
(viii) hire any employees or adopt any benefit plans other than as contemplated by this Agreement;
(ix) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Aw) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000250,000, (Bx) incurred between Acquiror and Merger Sub, (y) pursuant to any Working Capital Loans or (z) in respect of any Acquiror Transaction Expenses;
(vix) engage in any activities or business, other than activities or business (i) in connection with or incident or related to such Person’s incorporation or continuing corporate existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Agreement, the performance of covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby or (iii) those that are administrative or ministerial;
(xi) waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) any other Legal Proceeding;
(xii) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution;
(xiii) change its methods of accounting in any material respect, except insofar as may have been required by a change in GAAP or applicable Law or to comply with SEC guidance;
(xiv) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viixv) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration and issuances pursuant to the PIPE Investment and Forward Purchase Agreement, or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixxvi) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, Documents and the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR ActAgreement.
Appears in 1 contract
Samples: Merger Agreement (Khosla Ventures Acquisition Co. II)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, or otherwise take any action, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s 's or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s 's or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;Redemptions;
(iii) (A) make make, change or change revoke any material election in respect of material TaxesTax election, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxesfor Tax purposes, (D) enter into any “"closing agreements” agreement" as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign Law) with any Governmental Authority in respect of material TaxesAuthority, (E) settle any claim or assessment in respect of a material amount of Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a refund of a material amount of Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material amount of Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business);Taxes;
(iv) other than knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Mergers, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as expressly required by a "reorganization" within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew or amend in any material respect, any transaction or Contract with SoftBank or any of its Affiliates or an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor or anyone related by blood, marriage or adoption to any Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company's Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,00050,000, (B) incurred between Acquiror and Merger Sub, (C) in respect of any Working Capital Loan in an aggregate amount not to exceed $1,500,000, or (D) any draw down under that certain amended and restated promissory note, dated as of the date hereof, by and between Acquiror and Sponsor (the "A&R Promissory Note");
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror consistent with past practice (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);Loan);
(viiviii) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action);
(ix) other than with respect to the PIPE Investment, the Subscription Agreements or the Sponsor Letter (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Stock Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereofof this Agreement, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; therein; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s 's Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein .
(c) Acquiror shall use reasonable best efforts to take, or cause to be deemed taken, all actions, and do, or cause to give be done, all things necessary, proper or advisable to ensure that it shall satisfy the Company, directly or indirectly, rights to control or direct Minimum Available Cash Condition at the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR ActClosing.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except (i) as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements, (ii) as required by applicable Law (including COVID-19 Measures), or (iii) as consented to by Company Holdco or the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use its reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, Acquiror and Merger Sub shall not except as (x) consented to by the any Company Party in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise (y) contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or Investment), the Ancillary Agreements or as the Forward Purchase Agreement, or (z) required by Law:applicable Law (including COVID-19 Measures):
(i) seek any approval from the Acquiror ShareholdersStockholders to adopt any amendments, supplements, restatements or modifications to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make make, declare, set aside, establish a record date for or declare pay any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Stockholder Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes, Taxes or enter into any Tax sharing or similar agreement or (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action where such action could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(v) other than as expressly required by the Sponsor Support Agreement or the Forward Purchase Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Parties or any of its Subsidiaries, their Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee guarantees (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) pursuant to any Working Capital Loans, (C) incurred between Acquiror and Merger Sub, or (D) in respect of an Acquiror Transaction Expense;
(vivii) incur, assume make any loans or otherwise become liable for (whether directly, contingently or otherwise) any Indebtednessadvances to, or guarantee capital contributions in, any Indebtedness of another other Person;
(viii) engage in any activities or business, other than activities or business (i) in connection with or incident or related to such Person’s incorporation or continuing corporate existence, (ii) contemplated by, or otherwise knowingly and purposefully incurincident or related to, assumethis Agreement, guarantee any Ancillary Agreement, the performance of covenants or otherwise become liable for agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby or (whether directlyiii) those that are administrative or ministerial;
(ix) waive, contingently release, compromise, settle or otherwisesatisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) any other material liabilitiesLegal Proceeding;
(x) authorize, debts recommend, propose or obligationsannounce an intention to adopt a plan of complete or partial liquidation or dissolution;
(xi) enter into any Contract with any broker, finder, investment banker or other than fees and expenses for professional services incurred Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in support of connection with the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)Agreement;
(viixii) change its methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards or SEC guidance;
(xiii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration and issuances pursuant to the PIPE Investment and Forward Purchase Agreement, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixxiv) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, Documents and the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a partyAgreement. Nothing contained herein in this Section 7.5 shall be deemed to give to the CompanyCompany Parties, directly or indirectly, rights the right to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate Date. Prior to the HSR ActClosing Date, each of Acquiror and the Company Parties shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Law.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Investment) or in connection with the Domestication) Ancillary Agreements, or as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), use reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (B) incurred between Acquiror and or Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee including with respect to any Indebtedness of another PersonWorking Capital Loans, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the ordinary course operations of the Acquiror or incident to the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)Agreements;
(vii) convert any Working Capital Loan in to warrants of the Acquiror;
(viii) waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) any other Legal Proceeding;
(ix) other than with respect to the PIPE Investment concurrently with Closing, (A) issue any Acquiror Securities or securities exercisable for or convertible convertible, exchangeable or exercisable into or for Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Private Warrant, Acquiror Public Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Revolution Acceleration Acquisition Corp)
Acquiror Conduct of Business. (a) During the Interim Period, except as set forth on Section 7.5(a) of the Acquiror Disclosure Letter, Acquiror shall, and shall cause Merger Sub to, except as required by Law, as contemplated by this Agreement (including as contemplated by the Backstop Commitment, the Forward Purchase Commitment and any PIPE Investment or in connection with the Domestication) ), in connection with the Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the Backstop Commitment, the Forward Purchase Commitment or any PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Shareholders or make any other distributions in respect of any of Acquiror’s equity interests or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s equity interests or Merger Sub Capital Stock or equity interestsStock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock Ordinary Shares made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed income or other material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business, the principal subject of which is not Taxes), (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a refund of material Taxes or Taxes, (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions in connection with a customary extension of time to file the due date for filing a Tax Returns Return obtained in the ordinary course of business), (H) request a ruling or similar guidance from any Governmental Authority with respect to any Tax matter, or (I) file any income or other material Tax Return in a manner inconsistent with past practice;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations thereunder;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than (x) any indebtedness for borrowed money or guarantee from its Affiliates and members or stockholders in order to meet its reasonable administrative costs and expenses and other capital requirements (A) incurred including the costs and expenses necessary for any PIPE Investment, investment made under the Backstop Commitment and the Forward Purchase Commitment), with any such loans to be made only as reasonably required by the operation of Acquiror in due course on a non-interest basis and otherwise on arm’s-length terms and conditions and repayable at the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000Closing, (By) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan in an aggregate amount not to exceed $950,000 (in addition to the $1,050,000 outstanding under Working Capital Loan as of the date hereof), (z) any indebtedness pursuant to an Extension under Section 7.4 including the costs and expenses necessary thereto or (aa) incurred in the ordinary course of business)between Acquiror and Merger Sub;
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than (x) the issuance of the shares of Domesticated Acquiror Common Stock comprising the Aggregate Merger Consideration, (y) the issuance of Acquiror private placement warrants to the Sponsor in an Extension, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amendother than the issuance of Acquiror private placement warrants to the Sponsor for the purpose of extending the period of time to consummate a business combination, or, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth thereintherein and (z) as contemplated by this Agreement (including but not limited to pursuant to the Backstop Commitment, the Forward Purchase Commitment or a PIPE Investment);
(viii) take hire any actionemployees or engage any independent contractors, advisors or knowingly fail to take any actionconsultants, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentin each case, with annual compensation in excess of $200,000; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During . Notwithstanding the Interim Periodforegoing, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate Effective Time. Prior to the HSR ActEffective Time, each of the Company and Acquiror shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its and its Subsidiaries’ respective operations.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s Capital Stock or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s Capital Stock or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as explicitly contemplated by this Agreement (including as contemplated by the PIPE Investment Investment) or in connection with the Domestication) Ancillary Agreements, or as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), use reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as explicitly contemplated by the PIPE Investment or in connection with the Domestication) or Investment), the Ancillary Agreements or the Forward Purchase Agreement or as required by applicable Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interestsSub’s Equity Interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interestsSub’s Equity Interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests Equity Interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;
(iii) (A) make make, change or change revoke any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) prepare or file any material Tax Return in a manner inconsistent with past practice (except to the extent required by applicable Law), (D) fail to pay any material amount of Tax when due (including any material estimated Tax payments), (E) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DF) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement (in each case, other than Ordinary Course Agreements), (EG) settle any claim or assessment in respect of material Taxes, (FH) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (GI) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5% %) or greater);
(v) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Merger Sub or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee incurred (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000practice, (B) incurred between Acquiror and or Merger SubSub or (C) incurred under any Working Capital Loans;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)) or incident to the transactions contemplated by this Agreement and the Ancillary Agreements, including Acquiror Transaction Expenses;
(vii) waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) other Legal Proceeding;
(viii) other than with respect to the PIPE Investment or the sale of the Forward Purchase Securities concurrently with Closing, (A) issue any Acquiror Securities or securities Equity Interests convertible, exchangeable or exercisable into or for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Private Warrant or Acquiror Public Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement Contract to do or take any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to to, comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or material Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (ECP Environmental Growth Opportunities Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, except (w) as set forth in Section 7.4 of the Acquiror shallDisclosure Letter, and shall cause Merger Sub to, except (x) as contemplated by this Agreement (including as in connection with any financing arrangement or efforts contemplated by the PIPE Investment Section 8.6 or in connection with the Domestication) or the Ancillary Agreements, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (z) as required by Law, Acquiror shall operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except (w) as set forth in Section 7.4 of the Acquiror Disclosure Letter, (x) as contemplated by this Agreement (including in connection with any financing arrangement or efforts contemplated by Section 8.6 or in connection with the Domestication) or the Ancillary Agreements, (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) or (z) as required by Law, Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger SubAcquiror, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Shareholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interestscapital, (By) split, combine, reclassify reclassify, recapitalize or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock share capital or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger SubAcquiror, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change amend any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, or (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, where such action or failure to act would reasonably be expected to prevent the Merger from qualifying for the Intended U.S. Tax Treatment or the Intended Spanish Tax Treatment. For the avoidance of doubt, following the Domestication (and prior to the Merger), Acquiror shall cease operations in the Cayman Islands, and shall not hold material assets in, or deposited in, persons located in the Cayman Islands, nor carry out any material actions concerning this Agreement and the transactions contemplated hereunder from the Cayman Islands;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5% %) or greater);
(vvi) except as contemplated by the Equity Incentive Plan, (A) enter into, adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement that would cover employees of Acquiror following Closing or (B) hire any employee or any other individual to provide services to Acquiror following Closing;
(vii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses expenses, including finder’s fees, for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties Parties agree shall include any Indebtedness in respect of any Working Capital Loan Loan) or (B) any Indebtedness for borrowed money or guarantee incurred in the ordinary course of business)business consistent with past practice;
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance (1) of the Aggregate Closing Date Merger Consideration, (2) of Surviving Corporation Options, in each case in accordance with Section 3.3, and (3) in connection with any financing arrangement or efforts contemplated by Section 8.6, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.57.4.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated expressly required or permitted by this Agreement or any Ancillary Agreement to which Acquiror or Merger Sub is a party (including as contemplated by the PIPE Investment or in connection with and as necessary to effect the Domestication) ), as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), use reasonable best efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, Acquiror shall not, and shall cause Merger Sub not to, except (w) as otherwise expressly required or permitted by this Agreement or any Ancillary Agreement (including as contemplated by the PIPE Investment and as necessary to effect the Domestication), (x) as required by Law, (y) as consented to by the Company in writing (which consent with respect to clauses (iii), (v), (vi), (vii) and (viii) (to the extent relating to the foregoing items) of this Section 8.5(a) shall not be unreasonably conditioned, withheld, delayed conditioned or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domesticationdelayed) or (z) as set forth in Section 8.5(a) of the Ancillary Agreements or as required by LawAcquiror Disclosure Letter:
(i) amend, restate, supplement or otherwise modify or waive any provision of (or seek any approval from the Acquiror ShareholdersShareholders to amend, to changerestate, supplement or otherwise modify or amend waive any provision of) the Trust Agreement, the Acquiror Warrants, the Warrant Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction ProposalsProposals or the Acquiror Warrant Proposal;
(ii) except as contemplated by the Transaction Proposals, (A) make pay, make, declare or declare set aside any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock, share capital or equity interestsSub, (B) split, combine, reclassify or otherwise amend or modify any terms of any shares or series Equity Security of Acquiror’s Acquiror or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire (or offer to purchase, repurchase, redeem or otherwise acquire) any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests Equity Security of Acquiror or Merger Sub, other than a redemption of shares of to provide eligible Acquiror Class A Common Stock made as part of Shareholders with the opportunity to effect Acquiror Share RedemptionsRedemptions as required by Acquiror’s Governing Documents;
(iii) (A) make or change any material election in respect of material Taxes, (BA) materially amend, modify or otherwise change any filed material Tax Return, (CB) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DC) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes), (ED) settle any claim or assessment in respect of material Taxes, (FE) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes; or (GF) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect of any material Tax attribute that would reasonably be expected to extensions give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew, terminate, amend, restate, supplement or otherwise modify or waive any provision of any transaction or Contract (including the Insider Letter) with any Affiliate of Acquiror or Merger Sub, any Acquiror Insider or any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater;
(vi) other than Acquiror Transaction Expenses, incur, assume or otherwise become liable for (whether directly or indirectly, absolutely or contingently or otherwise) any Indebtedness or Liability or guarantee any Indebtedness or Liability of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of Acquiror or any of its Subsidiaries or guarantee any debt securities of another Person, other than Indebtedness for borrowed money incurred in the Intended Tax Treatmentordinary course of business consistent with past practice and not exceeding $100,000 in the aggregate;
(A) issue any Equity Securities of Acquiror, other than the issuance of the Aggregate Equity Value Consideration and the issuance of the Aggregate Earn-out Value Consideration, (B) grant any options, warrants or other equity-based awards with respect to Equity Securities of Acquiror not outstanding on the date hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant, including any amendment, modification or reduction of the warrant price set forth therein; or
(ixviii) enter into any agreement to do take any action prohibited under this Section 7.58.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During Except (i) as expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law (including for this purpose any Permitted COVID-19 Measures), (iii) as set forth on Section 6.5(a) of the Acquiror Disclosure Letter or (iv) as consented to by the Company in writing, during the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practiceOrdinary Course. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement or the Ancillary Agreements, (ii) as required by applicable Law, (iii) as set forth on Section 6.5(a) of the Acquiror Disclosure Letter or (iv) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, interests or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock (prior to the Effective Time) made as part of the Acquiror Share Redemptions;
(iii) merge or consolidate with or acquire (Aby purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(iv) make or change any material election in respect of material Taxes, (B) materially amend, modify except to comply with GAAP or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign applicable Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(ivv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate Contract, other than any transaction pursuant to which Sponsor or any of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater)its Affiliates provides debt financing to Acquiror;
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Merger Sub or guaranty any debt securities of another Person, other than any indebtedness Indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume Sub or otherwise become liable for (whether directly, contingently debt financing provided by Sponsor or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)its Affiliates to Acquiror;
(vii) make any material change in its accounting principles or methods unless required by GAAP;
(A) issue any Acquiror Securities Capital Stock or securities exercisable for or convertible into Acquiror SecuritiesCapital Stock, other than the issuance of Acquiror Class A Common Stock pursuant to the Aggregate Merger Consideration, PIPE Subscription Agreements or this Agreement (including under Section 6.2) or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities Capital Stock not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant this Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) take settle or agree to settle any litigation, action, proceeding or knowingly fail to take investigation before any action, court or governmental body or that imposes injunctive or other non-monetary relief on the Acquiror or Merger Sub except where such action waivers, releases, settlements or failure to act could reasonably be expected to prevent compromises involve only the Merger from qualifying for payment of monetary damages in an amount less than $2,500,000 in the Intended Tax Treatmentaggregate; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.56.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to Sub to, comply in all material respects with, and continue performing under, as applicable, Acquiror’s the Acquiror Governing Documents, the Trust Agreement and all other agreements or material Contracts to which Acquiror or its Subsidiaries Merger Sub may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause First Merger Sub and Second Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Additional Transactions or in connection with the Domestication) or the Ancillary Agreements, as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use reasonable best efforts to operate its business in the ordinary course and of business consistent with past practicepractice provided, that, notwithstanding anything to the contrary in this Agreement, Acquiror, First Merger Sub and Second Merger Sub may take any action, including the establishment of any (or maintenance of any existing) policy, procedure or protocol, in order to respond to the impact of COVID-19 or comply with any applicable COVID-19 Measures; provided, further, in each case, that (i) such actions are reasonably necessary, taken in good faith and taken to preserve the continuity of the business of Acquiror, First Merger Sub or Second Merger Sub and/or the health and safety of their respective employees and (ii) Acquiror, First Merger Sub or Second Merger Sub shall, unless prohibited by Law, inform the Company of any such actions prior to the taking thereof and shall consult with and consider in good faith any suggestions or modifications from the Company with respect thereto. Without limiting the generality of the foregoing, during the Interim Period, except as contemplated by this Agreement (including as contemplated by the Additional Transactions or in connection with the Domestication), the Ancillary Agreements or the Required Transaction, as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause First Merger Sub and Second Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror Acquiror, First Merger Sub or Second Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s, First Merger Sub’s or Second Merger Sub Sub’s Capital Stock, share capital or equity interests, (By) split, combine, reclassify or or, except as contemplated by the Transaction Proposals, otherwise amend any terms of any shares or series of Acquiror’s, First Merger Sub’s or Second Merger Sub Sub’s Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror Acquiror, First Merger Sub or Second Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;
(iii) (Ai) make make, change or change revoke any material election in respect of material TaxesTax election, (Bii) materially amend, modify or otherwise change any filed material Tax Return, (Ciii) adopt or request permission of any taxing authority to change any accounting method for Tax purposes or change any Tax accounting period in respect of material Taxes, (Div) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign Law) with any Governmental Authority in respect of material TaxesAuthority, (Ev) settle any claim or assessment in respect of a material amount of Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (Gvi) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material Taxes (other than pursuant to extensions amount of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Mergers from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror Acquiror, First Merger Sub or Second Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or (x) in support of the ordinary course operations of Acquiror or incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements, which are not, individually or in the aggregate, material to Acquiror, (y) pursuant to any Contract set forth on Section 5.15 of the Acquiror Disclosure Letter or (z) incurred between Acquiror, First Merger Sub or Second Merger Sub;
(vii) waive, release, compromise, settle or satisfy any pending or threatened material claim (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businesspending or threatened Action);
(viiviii) (A) issue any Acquiror Securities or securities any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable for into, or convertible into for, Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in respect of any Acquiror PIPE Investment substantially concurrently with the Closing, or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) take conduct any actionactivities or enter into any Contracts directed toward or in contemplation of an alternative Business Combination to the Business Combination contemplated by this Agreement;
(x) withdraw any funds from the Trust Account, other than as permitted by Xxxxxxxx’s Governing Documents or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax TreatmentTrust Agreement; or
(ixxi) enter into any agreement agreement, in writing or otherwise, to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including First Merger Sub and Second Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein .
(c) Notwithstanding anything in this Section 7.5 or this Agreement to the contrary, (i) nothing shall be deemed to give to the Company, directly or indirectly, rights the right to control or direct the operations of Acquiror, First Merger Sub or Second Merger Sub and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, Acquiror, First Merger Sub or Second Merger Sub from using the funds held by Acquiror outside the Trust Account to pay any Acquiror expenses or liabilities or from otherwise distributing or paying over any funds held by Acquiror outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing Date in a manner which may violate the HSR ActClosing.
Appears in 1 contract
Samples: Business Combination Agreement (Freedom Acquisition I Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements, as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;
(iii) (Ai) make make, change or change revoke any material election in respect of material TaxesTax election, (Bii) materially amend, modify or otherwise change any filed material Tax Return, (Ciii) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxesfor Tax purposes, (Div) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign Law) with any Governmental Authority in respect of material TaxesAuthority, (Ev) settle any claim or assessment in respect of a material amount of Taxes, (Fvi) affirmatively knowingly surrender or allow to expire any right to claim a refund of a material amount of Taxes or (Gvii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material amount of Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger SubSub or (z) in respect of an Acquiror Transaction Expense permitted by clause (vii) below;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or (A) in support of the ordinary course operations of Acquiror (and incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements, which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred are not, individually or in the ordinary course aggregate, material to Acquiror or (B) pursuant to any Contract set forth on Section 5.16 of business)the Acquiror Disclosure Letter;
(viiviii) waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) any other Legal Proceeding;
(ix) (A) issue any Acquiror Securities or securities any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable for into, or convertible into for, Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration or in respect of the PIPE Investment substantially concurrently with the Closing, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. V)
Acquiror Conduct of Business. (a) During From the Interim Perioddate of this Agreement through the earlier of the Closing or valid termination of this Agreement pursuant to Article X, Acquiror shall, and shall cause Merger Sub its Subsidiaries to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent substantially in accordance with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub its Subsidiaries not to, except as otherwise contemplated by this Agreement Agreement:
(including a) change or amend the certificate of incorporation, bylaws or other organizational documents of Acquiror or any of its Subsidiaries, except as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as otherwise required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(iib) except as contemplated by the Transaction Proposals, (Ai) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stockany of its Subsidiary’s capital stock, share capital or equity interestsexcept for dividends by any of Acquiror’s wholly-owned Subsidiaries, (Bii) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, any of its Subsidiary’s capital stock or (Ciii) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Subits Subsidiaries, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
Redemption (iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of businessdefined below);
(ivc) other than as expressly required by the Sponsor Support Agreementincur or assume any Indebtedness or guarantee any Indebtedness of another Person, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, Subsidiary or guaranty any debt securities of another Person, other than any indebtedness for borrowed money Indebtedness or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (By) incurred between Acquiror and Merger Subany of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viid) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than (i) issuance of Acquiror Common Shares pursuant to, and in accordance with, the Equity Commitment Letter and (ii) issuance of the Aggregate Merger Stock Consideration, or (B) grant any additional options, warrants or other equity-based awards stock appreciation rights with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixe) enter into any agreement agreement, or otherwise become obligated, to do any action prohibited under this Section 7.57.7.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Acquiror Conduct of Business. (a) During From the Interim Perioddate of this Agreement through the earlier of the Closing or valid termination of this Agreement pursuant to Article X, Acquiror shall, and shall cause Merger Sub its Subsidiaries to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent substantially in accordance with past practice. Without limiting the generality of the foregoing, except as (x) for actions taken in connection with the Acquiror Extension Approval or (y) consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub its Subsidiaries not to, except as otherwise contemplated by this Agreement Agreement:
(including a) change or amend the certificate of incorporation, bylaws or other organizational documents of Acquiror or any of its Subsidiaries, except as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as otherwise required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(iib) except as contemplated by the Transaction Proposals, (Ai) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stockany of its Subsidiary’s capital stock, share capital or equity interestsexcept for dividends by any of Acquiror’s wholly-owned Subsidiaries, (Bii) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, any of its Subsidiary’s capital stock or (Ciii) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Subits Subsidiaries, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
(iiic) (A) make incur or change assume any material election in respect Indebtedness or guarantee any Indebtedness of material Taxesanother Person, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, Subsidiary or guaranty any debt securities of another Person, other than any indebtedness for borrowed money Indebtedness or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, or (By) incurred between Acquiror and Merger Subany of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viid) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than (i) issuance of Acquiror Common Shares pursuant to, and in accordance with the Sponsor Equity Backstop and any third party equity financing of Acquiror contingent upon the Closing, and (ii) issuance of the Aggregate Merger Consideration, or (B) grant any additional options, warrants or other equity-based awards stock appreciation rights with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixe) enter into, or become bound by, any Contract except in the ordinary course of business or as reasonably necessary in connection with the transactions contemplated hereby.
(f) enter into any agreement agreement, or otherwise become obligated, to do any action prohibited under this Section 7.57.8.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment Equity Facility or in connection with the Domestication) ), as required by Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment Equity Facility or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except (A) as contemplated by the Transaction ProposalsProposals or with respect to an Extension or (B) to remove the requirement to have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act);
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
(iii) (A) make or change take any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, localaction, or foreign Law) with knowingly fail to take any Governmental Authority in respect of material Taxesaction, (E) settle any claim where such action or assessment in respect of material Taxes, (F) affirmatively surrender failure to act could reasonably be expected to prevent the Domestication from qualifying for the Domestication Intended Tax Treatment or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Merger from qualifying for the Merger Intended Tax Returns obtained in the ordinary course of business)Treatment;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) make or change any material election in respect of material Taxes, (A) amend, modify or otherwise change any filed material Tax Return, (B) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (C) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement, (D) settle any claim or assessment in respect of material Taxes, (E) surrender or allow to expire any right to claim a refund of material Taxes; or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(vi) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries, Acquiror’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than (A) fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan Loan), (B) any Indebtedness for borrowed money or guarantee incurred in the ordinary course of business)business consistent with past practice and in an aggregate amount not to exceed $100,000, and (C) any Indebtedness for borrowed money or guarantee incurred between Acquiror and Merger Sub;
(vii) other than with respect to the Equity Facility, (A) issue any Acquiror Securities or any other equity interests of Acquiror or securities exercisable for or convertible into Acquiror SecuritiesSecurities or any other equity interests of Acquiror, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities or any other equity interests of Acquiror not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take (D) amend, modify or waive any action, where such action of the material terms or failure to act could reasonably be expected to prevent rights set forth in any Acquiror Rights or the Merger from qualifying for the Intended Tax TreatmentAcquiror Rights Agreement; or
(ixviii) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein .
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall prohibit or restrict Acquiror from extending, with or without shareholder approval, in accordance with its Governing Documents, the deadline by which it must complete its Business Combination (an “Extension”), and no consent of any other party shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date required in a manner which may violate the HSR Actconnection with such Extension.
Appears in 1 contract
Samples: Merger Agreement (Growth for Good Acquisition Corp)
Acquiror Conduct of Business. (a) During the Interim Period, except as set forth on Section 7.3(a) of the Acquiror Disclosure Letter, Acquiror shall, and shall cause Merger Sub to, except as required by Law, as contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) Agreement, or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s equity interests or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s equity interests or Merger Sub Capital Stock or equity interestsStock, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) other than as required by applicable Law, (A) make or change any material Tax election other than in respect the ordinary course of material Taxesbusiness, (B) materially amend, modify modify, or otherwise change any filed income or other material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign non-U.S. Tax Law) with any Governmental Authority in respect of material Taxes or any Tax sharing, indemnification, or similar agreement in respect of Taxes (other than any customary Contract entered into in the ordinary course of business and not primarily related to Taxes), (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a refund of material Taxes or Taxes, (G) consent to any extension or waiver of the limitation period statute of limitations applicable to any claim or assessment in respect of material Taxes (other than pursuant to customary extensions of time the due date for filing a Tax Return) or (H) initiate or enter into any voluntary disclosure agreement related to file Tax Returns obtained in the ordinary course of business)material Taxes;
(iv) other than as expressly required by knowingly take any action or agree to take any action where such action could reasonably be expected to prevent the Sponsor Support Agreement, Merger from qualifying for the Intended Tax Treatment;
(v) (A) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater)) or (B) amend in any respect that certain letter agreement, dated December 10, 2021, by and among Acquiror, its officers and directors, the Sponsor and certain other stockholders of Acquiror party thereto;
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than (x) any indebtedness for borrowed money or guarantee (A) incurred from its Affiliates and stockholders in order to meet its reasonable capital requirements, with any such loans to be made only as reasonably required by the ordinary operation of Acquiror in due course of business consistent with past practice on a non-interest basis and otherwise on arm’s-length terms and conditions and repayable at the Closing, and in any event in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror 5,000,000 (which the parties Parties agree shall include any Indebtedness in respect of any Working Capital Loan Loan) or (y) incurred in the ordinary course of business)between Acquiror and Merger Sub;
(vii) other than with respect to the sale of shares of Acquiror Class A Common Stock in connection with the Private Placement Investment, (A) issue or promise to issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate shares of Acquiror Class A Common Stock comprising the Total Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take except as contemplated by the Equity Incentive Plan and ESPP, (A) enter into, adopt or amend any actionAcquiror Benefit Plan, or knowingly fail enter into any employment contract or collective bargaining agreement or (B) hire any employee or any other individual to take any action, where such action provide services to Acquiror or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatmentits Subsidiaries following Closing; or
(ix) enter into any agreement to do any action prohibited under this Section 7.57.3.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the Total PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the Total PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, or otherwise take any action, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make make, change or change revoke any material election in respect of material TaxesTax election, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxesfor Tax purposes, (D) enter into any “closing agreementsagreement” as described in Section 7121 of the Code (or any similar provision of state, local, local or foreign Law) with any Governmental Authority in respect of material TaxesAuthority, (E) settle any claim or assessment in respect of a material amount of Taxes, (F) affirmatively knowingly surrender or allow to expire any right to claim a refund of a material amount of Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material amount of Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) other than take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Mergers, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as expressly required by a “reorganization” within the Sponsor Support Agreement, meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor or anyone related by blood, marriage or adoption to any Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger SubSub or (C) in respect of any Working Capital Loan in an aggregate amount not to exceed $2,500,000;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of businessLoan);
(viiviii) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action);
(ix) other than with respect to the Total PIPE Investment (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Stock Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ixx) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Acquiror Conduct of Business. (a) During From the Interim Perioddate of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with Article XII, Acquiror shall, and shall cause Merger Sub its Subsidiaries to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or Agreement, as consented to by the Company Holder Representatives in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denied)delayed) or as required by applicable Law, operate its business in the ordinary course and consistent substantially in accordance with past practice. Without limiting the generality of the foregoing, except (x) for actions taken in connection with the Acquiror Extension Approval that are expressly permitted or otherwise expressly contemplated by this Agreement or (y) as consented to by the Company Holder Representatives in writing (which consent shall not be unreasonably conditioned, withheldwithheld or delayed), delayed from the date of this Agreement through the earlier of the Closing or denied)the termination of this Agreement in accordance with Article XII, Acquiror shall not, and Acquiror shall cause Merger Sub its Subsidiaries not to, except as otherwise contemplated by this Agreement or as required by applicable Law:
(including as contemplated by a) change or amend the PIPE Investment certificate of incorporation, bylaws or other governing documents of Acquiror or any of its Subsidiaries, other than in connection with the Domestication) Domestication or the Ancillary Agreements or as required by Law:Acquiror Extension Approval in a form and substance reasonably satisfactory to the Panavision Holder Representative;
(b) (i) seek any approval from the Acquiror Shareholdersmake, to changeset aside, modify declare or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (A) make or declare pay any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of the share capital, capital stock or other equity interests of Acquiror or any of its Subsidiaries, except for dividends by any of the wholly owned Subsidiaries of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (Bii) split, combine, reclassify reclassify, recapitalize or otherwise amend any terms of any shares or series of Acquiror’s the share capital, capital stock or Merger Sub Capital Stock other equity interests of Acquiror or equity interestsany of its Subsidiaries, other than in connection with the Domestication, or (Ciii) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Subits Subsidiaries, other than a redemption of shares of Acquiror Class A Common Stock Shares made as part of the Acquiror Share Redemptions;
(iiic) (A) make incur or change assume any material election in respect of material TaxesIndebtedness, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (A) the Sponsor and (B) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Acquiror or any of its Subsidiaries or guarantee any debt securities of any other Person, other than any Indebtedness or guarantees incurred between Acquiror or any of its Subsidiaries, on the one hand, and any of Acquiror’s wholly owned Subsidiaries or guaranty any debt securities Sponsor, on the other hand, solely for purposes of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice funding Acquiror Transaction Expenses and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub2,500,000;
(vid) incurmake any loans, assume advances or otherwise become liable for (whether directly, contingently or otherwise) capital contributions to any Indebtedness, or guarantee any Indebtedness of another other Person, except to Acquiror or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business)its Subsidiaries;
(viie) (Ai) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than (A) the issuance of Acquiror Common Shares pursuant to and in accordance with the PIPE Investment, (B) the issuance of the Aggregate Merger Panavision Stock Consideration, the Aggregate SIM Stock Consideration and the Panavision Contingent Shares, in each case, on the terms and subject to the conditions herein, and (BC) upon the conversion of Founder Shares that are not otherwise cancelled pursuant to the Contribution Agreement on the terms and subject to the conditions set forth in the Contribution Agreement and this Agreement, (ii) grant any additional options, warrants or other equity-based awards stock appreciation rights with respect to Acquiror Securities not outstanding on the date hereofof this Agreement or (iii) enter into any Contracts of any kind (A) that may obligate Acquiror to issue, purchase, redeem, sell, vote or otherwise acquire any Acquiror Securities, (B) relating to options, stock appreciation rights, warrants or rights (including any preemptive rights) with respect to Acquiror Securities or other securities convertible into or exchangeable or exercisable for Acquiror Securities or (C) amendthe value of which is determined by reference to Acquiror Securities, other than, in each case, solely to the extent required to implement the Acquiror Extension Approval or to effect the Domestication;
(f) form a joint venture, partnership or strategic alliance with any third Person;
(g) enter into, renew, modify or waive any of the material terms or rights set forth in revise any Acquiror Warrant Related Party Contract, other than the entry into any Acquiror Related Party Contract with respect to the incurrence of any Indebtedness or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth thereinguarantee with respect thereto permitted by Section 9.6(c);
(viiih) take form or cause to be formed any actionnew Subsidiary;
(i) waive, release, assign, settle, compromise or otherwise resolve any material Actions, except where such waivers, releases, assignments, settlements or compromises (i) involve only the payment of monetary damages in an amount less than $150,000 per individual claim or $500,000 in the aggregate (as well as related non-substantive incidental provisions and other remedies or obligations that are not material in the context of the applicable resolution) that would be paid in full prior to the Closing or (ii) are covered by insurance and would not impose equitable relief upon, or knowingly fail require the admission of wrongdoing by, Acquiror or any of its Subsidiaries or any of their respective officers, directors or managers;
(j) authorize, recommend, propose or announce an intention to take adopt a plan of complete or partial liquidation or dissolution;
(k) (i) adopt, enter into, terminate or amend any action, where such action “employee benefit plan” (as defined in Section 3(3) of ERISA) other than as required by applicable Law or failure pursuant to act could reasonably be expected to prevent any benefit plan in effect as of the Merger from qualifying for date of this Agreement or (ii) increase the Intended Tax Treatmentcompensation of any Person who is a director or officer of Acquiror; or
(ixl) enter into any agreement Contract, or otherwise become obligated, to do any action prohibited under this Section 7.59.6.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Business Combination Agreement (Saban Capital Acquisition Corp.)
Acquiror Conduct of Business. (a) During From and after the Interim Perioddate of this Agreement until the earlier of the Closing or the termination of this Agreement, Acquiror shall, and shall cause Merger Sub to, except as expressly contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements, as required by applicable Law, as set forth on Section 7.5 of the Acquiror Disclosure Letter or as expressly consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.5 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, withheld or delayed or deniedif such matter is in furtherance of the transactions contemplated by this Agreement), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals(x) make, (A) make set aside, pay or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, subdivide, combine, consolidate, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Sub’s Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock Ordinary Shares required to be made as part of the Acquiror Share Redemptions;
(iii) (Atake any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material Taxes, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of and the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Treasury Regulations;
(iv) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Aw) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (Bx) pursuant to any Working Capital Loans, (y) incurred between Acquiror and Merger SubSub or (z) in respect of an Acquiror Transaction Expense permitted by clause (vi) below;
(vi) incur, create, guarantee, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or (A) in support of the ordinary course operations of Acquiror (and incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements, which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred are not, individually or in the ordinary course aggregate, in excess of business)$1,000,000 or (B) pursuant to any Contract set forth on Section 5.16 of the Acquiror Disclosure Letter;
(vii) waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) any other Legal Proceeding;
(viii) (A) issue any Acquiror Securities or securities any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable for into, or convertible into for, Acquiror Securities, other than the issuance pursuant to Article III hereof or in respect of the Aggregate Merger ConsiderationPIPE Investment substantially concurrently with the Closing, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viiiix) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving Acquiror;
(x) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(xi) take any action, action or knowingly fail to take any action, where such which action or failure to act could prevents or impedes, or would reasonably be expected to prevent the Merger from qualifying for or impede the Intended Tax Treatment;
(xii) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Legal Proceeding)
(xiii) create any new Subsidiary; or
(ixxiv) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and and, in all material respects, all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (One)
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement (including as contemplated by the PIPE Investment or Investment), in connection with the Domestication) Domestication or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (BA) materially amend, modify or otherwise change any filed material Tax Return, (CB) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (DC) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (ED) settle any claim or assessment in respect of material Taxes, (FE) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of Acquiror and Merger Sub or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (Ax) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (By) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viiviii) (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the PIPE Investment or in connection with the Domestication) ), as required by Law (including COVID-19 Measures), or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (x) operate its business in the ordinary course and consistent (y) preserve intact the Acquiror’s present business organization, retain Acquiror’s current officers, and preserve Acquiror’s relationships with past practice. Without limiting the generality its shareholders and other business relationships, provided, however, that no action or inaction by Acquiror or Merger Sub with respect to matters specifically addressed by Section 7.5(a)(i) through (ix) shall be deemed a breach of the foregoing, except foregoing unless such action or inaction would constitute a breach of such specific provision of Section 7.5(a)(i) through (ix). Except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the Domestication) or the Ancillary Agreements or as required by Law:Law (including COVID-19 Measures):
(i) seek any approval from the Acquiror Shareholders, Shareholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction ProposalsProposals or the Acquiror Warrant Amendment Proposal;
(ii) except as contemplated by the Transaction ProposalsProposals or the Acquiror Warrant Amendment Proposal, (A) make or declare any dividend or distribution to the shareholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital StockSub’s capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock Sub’s capital stock or equity interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (EF) settle any claim or assessment in respect of material Taxes, (FG) affirmatively surrender or allow to expire any right to claim a refund of material Taxes Taxes, or (GH) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action (excluding, for the avoidance of doubt, increasing the Aggregate Merger Consideration to be received by the equityholders of the Company hereunder), where such action or failure to act could reasonably be expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(v) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) other than the Working Capital Loans, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vivii) incur, assume guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(viiviii) other than with respect to the PIPE Investment or the Working Capital Loans or as expressly contemplated by this Agreement, (A) issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant Securities or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Acquiror Conduct of Business. (a) During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as otherwise explicitly contemplated by this Agreement (including as contemplated by the PIPE Investment Investment) or in connection with the Domestication) Ancillary Agreements or required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and of business consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment or in connection with the DomesticationInvestment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from the Acquiror ShareholdersStockholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;
(ii) except as contemplated by the Transaction Proposals, (Ax) make or declare any dividend or distribution to the shareholders stockholders of Acquiror or make any other distributions in respect of any of Acquiror’s or Merger Sub Capital Stock, share capital or equity interests, (By) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub Capital Stock or equity interests, or (Cz) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock made as part of the Acquiror Share Redemptions;
(iii) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority agreement in respect of material TaxesTaxes or enter into any Tax sharing or similar agreement, (E) settle any claim or assessment in respect of material Taxes, (F) affirmatively surrender or allow to expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than pursuant or in respect to extensions any material Tax attribute that would give rise to any claim or assessment of time to file Tax Returns obtained in the ordinary course of business)Taxes;
(iv) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(v) other than as expressly required by the Sponsor Support and Lock-up Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (Ax) the Sponsor and (By) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vvi) other than the issuance of any convertible notes in connection with a PIPE Investment, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee (A) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $100,000, (B) incurred between Acquiror and Merger Sub;
(vi) incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, or guarantee any Indebtedness of another Person, or otherwise knowingly and purposefully incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business);
(vii) (A) except in connection with any PIPE Investment, issue any Acquiror Securities or securities exercisable for or convertible into Acquiror Securities, other than the issuance of the Aggregate Merger ConsiderationConsideration (other than pursuant to the exercise of any Acquiror Rights and unit purchase option issued to Chardan Capital Markets, LLC) or (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(viii) take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment; or
(ix) enter into any agreement to do any action prohibited under this Section 7.5.
(b) During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party. Nothing contained herein shall be deemed to give to the Company, directly or indirectly, rights to control or direct the operations of Acquiror prior to the Closing Date in a manner which may violate the HSR Act.
Appears in 1 contract
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
