Conduct of Business by Parent Pending the Closing. Parent agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement or as required by applicable Law or the regulations or requirements of the Exchange, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Parent will, and will cause each Parent Subsidiary to, (A) use its commercially reasonable efforts to preserve substantially intact its business organization and goodwill, and (B) conduct its operations in the ordinary and usual course of business substantially consistent with past practice. During the period from the date of this Agreement to the Effective Time, Merger Sub shall not engage in any activities of any nature except as provided in or contemplated by this Agreement. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement, or as required by applicable Law or the regulations or requirements of the Exchange, Parent shall not, and shall not permit any Parent Subsidiary to, between the date of this Agreement and the Effective, directly or indirectly, do any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change its articles of incorporation or bylaws or equivalent Organizational Documents; (b) take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (c) take any action that would be reasonably likely to delay the effectiveness of the Registration Statement; or (d) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Medistem Inc.), Agreement and Plan of Merger (Intrexon Corp)
Conduct of Business by Parent Pending the Closing. Parent agrees that(a) Except as expressly contemplated or permitted by this Agreement, between from the date of this Agreement until the earlier to occur of the Closing and the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision termination of this Agreement or as required by applicable Law or the regulations or requirements of the Exchangepursuant to ARTICLE IX, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), or except as required by Applicable Law, Parent willshall, and will shall cause each Parent Subsidiary its Subsidiaries to, (A) conduct their business in the Ordinary Course of Business in all material respects and, to the extent not inconsistent therewith, use its commercially reasonable efforts to (i) preserve substantially intact its their current business organization organizations, (ii) preserve in all respects their relationships with customers, suppliers, licensors, licensees, distributors and goodwill, other third parties that are material to the operation of the business and (Biii) conduct its operations keep available their present officers and key employees; provided, that, in the ordinary case of the immediately preceding clauses (ii) and usual course (iii), commercially reasonable efforts shall not be deemed to require Parent or any of business substantially consistent its Subsidiaries to exert any efforts with past practice. During respect to a particular matter that are greater than the period from level of efforts exerted by Parent or such Subsidiary with respect to such matter prior to the date of this Agreement; provided, further, that no action or inaction by Parent or any of its Subsidiaries with respect to any of the matters specifically addressed by another provision of this Section 7.2 shall be deemed to be a breach of the portion of this sentence preceding this proviso unless such action or inaction would constitute a breach of such other provision.
(b) From the date of this Agreement until the earlier to occur of the Effective TimeClosing and the termination of this Agreement pursuant to ARTICLE IX, Merger Sub shall not engage in any activities of any nature except (1) as provided in required by Applicable Law or Order or (2) as expressly contemplated or permitted by this Agreement. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement, or as required by applicable Law or the regulations or requirements of the Exchange, Parent shall not, and shall cause each of its Subsidiaries not permit any Parent Subsidiary to, between the date of this Agreement and the Effective, directly or indirectly, do any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned):
(ai) Parent; amend or otherwise change its articles the Organizational Documents of
(ii) merge or consolidate with any other Person or acquire a material amount of incorporation the stock or bylaws assets of any other Person or equivalent Organizational Documentseffect any business combination, recapitalization or similar transaction (other than the Merger) if such action would reasonably be expected to materially delay or prevent the satisfaction of the conditions set forth in Section 8.1(b);
(biii) take declare or pay any action that would prevent the Merger from qualifying as a reorganization within the meaning dividend on shares of Section 368(a) Parent Common Stock, including any dividend consisting of the Codeequity interests in QiG Group, LLC (to be renamed Nuvectra Corporation);
(civ) take engage in any action or activity (including redeeming or buying back any Parent Common Stock) that would be reasonably likely require Parent to delay obtain the effectiveness approval of its stockholders in connection with the consummation of the Registration Statementtransactions contemplated by this Agreement prior to Closing; or
(dv) authorize agree or enter into any agreement or otherwise make any commitment commit to do take any of the foregoingforegoing actions. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries prior to the Closing. Prior to the Closing, Parent and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of their respective operations.
Appears in 1 contract
Samples: Merger Agreement (Greatbatch, Inc.)
Conduct of Business by Parent Pending the Closing. Parent agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement or as required by applicable Law or the regulations or requirements of the Exchange, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Parent will, and will cause each Parent Subsidiary to, (A) use its commercially reasonable efforts to preserve substantially intact its business organization and goodwill, and (B) conduct its operations in the ordinary and usual course of business substantially consistent with past practice. During the period from the date of this Agreement to the Effective Time, Merger Sub shall not engage in any activities of any nature except as provided in specifically permitted, required or contemplated by any other provision of this Agreement (exclusive of the schedules hereto), as specifically set forth in a closing condition in Article VII or with the Company's prior written consent (such consent not to be unreasonably withheld), Parent shall, and shall cause each Parent Subsidiary to: (i) conduct its operations only in the Ordinary Course of Business, and not to take any action inconsistent therewith or with this Agreement, (ii) use its reasonable best efforts to keep available the services of the current officers, employees and consultants of Parent and each Parent Subsidiary (subject to terminations for cause or performance reasons) and to preserve the current relationships of Parent and each Parent Subsidiary with their respective customers, suppliers, distributors, business partners and other Persons with which Parent or any Parent Subsidiary has business relations, (iii) use its Best Efforts to have in effect and maintain at all times insurance of the kinds, in the amounts and with the insurers as is in effect as of the date of this Agreement, (iv) keep in working condition and good order and repair all of its assets and other properties, normal wear and tear excepted, and (v) protect Parent's Intellectual Property. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.2 of the Parent Disclosure Schedulespecifically permitted, as specifically required or contemplated by any other provision of this Agreement, or as required by applicable Law or the regulations or requirements Agreement (exclusive of the Exchangeschedules hereto), Parent shall not, and shall not permit any Parent Subsidiary to, between from the date of this Agreement to the Effective Time, directly or indirectly, do, or agree to do, any of the following without the Company's prior written consent (such consent not to be unreasonably withheld):
(a) acquire by merging or consolidating with or by purchasing a substantial Equity Interest in or a substantial portion of the assets of, or by any other manner, any business, Entity or division thereof other than a Parent Subsidiary, or enter into any agreement providing for any merger, consolidation, acquisition, divestiture or similar transaction;
(b) sell, Lease, license or otherwise dispose of any of its Property, other than in the Ordinary Course of Business;
(c) Amend or propose to Amend the Organizational Documents of it or any Parent Subsidiary;
(d) declare, set aside or pay any dividend or other distribution payable in cash, capital stock, Property or otherwise with respect to any shares of its capital stock, or purchase, redeem or otherwise acquire, or offer to purchase, redeem or otherwise acquire, any shares of its capital stock, other equity Securities, other ownership interests or any Commitments for any such stock, Securities or interests (except for repurchases of Parent Common Shares from former employees pursuant to Repurchase Rights and Parent purchases of Equity Interests of Parent Subsidiaries in the Ordinary Course of Business related to intra-company financings);
(e) cause or permit any Capitalization Adjustments to any Equity Interests of Parent;
(f) issue, sell, authorize, or agree to the issuance or sale of, or enter into any Commitments for, any Equity Interests of Parent or any Parent Subsidiary, except for (i) the Parent Common Shares issuable upon exercise of (A) Parent Options outstanding on the date hereof, or (B) Parent Warrants outstanding on the date hereof, (ii) the Parent Common Shares issuable upon the exercise of the A Warrant or the B Warrant, and (iii) Parent acquisitions of Equity Interests of Parent Subsidiaries in the Ordinary Course of Business related to intra-company financings;
(g) grant, Amend or change the terms of any Parent Options, or accelerate or change the period of exercisability or vesting of any Parent Options, or Amend any Repurchase Rights or accelerate or change the period of vesting of any Parent Common Shares subject to Repurchase Rights or the lapsing of such Repurchase Rights, or authorize cash payments in exchange for any Parent Options;
(i) take any action with respect to the grant or availability of, qualification for or increase in any severance or termination pay to any current or former director, executive officer or employee of Parent or any Parent Subsidiary, (ii) execute any employment, deferred compensation or other similar Contract (or any Amendment to any such existing Contract) with any director, executive officer or employee of Parent or any Parent Subsidiary (other than immaterial agreements entered into in the Ordinary Course of Business with non-U.S. employees on customary terms), (iii) increase the benefits payable under any existing severance or termination pay policies or employment Contracts, (iv) increase the compensation, bonus or other benefits of current or former directors, executive officers or employees of Parent or any Parent Subsidiary, (v) pay any bonuses to employees in excess of the amount set forth in Section 6.2(h) of the Original Parent Disclosure Schedules, (vi) adopt or establish any new Parent Benefit Plan or Amend any existing Parent Benefit Plan, (vii) pay any benefit to a current or former director, executive officer or employee of Parent or any Parent Subsidiary not required by any existing Contract or employee benefit plan, or (viii) take any action that would result in Parent or any Parent Subsidiary incurring any obligation for any payments or benefits described in clauses (i)-(viii) next preceding except to the extent required in a written contract or agreement in existence as of the date of this Agreement and described in Section 6.2(h) of the EffectiveOriginal Parent Disclosure Schedules;
(i) hire any employees at the vice president or equivalent level or above, directly or indirectlyenter into, do Amend or extend the term of, any employment or consulting Contract with any officer, employee, consultant or independent contractor (other than (i) offer letters to new employees using Parent's standard, unmodified form of offer letter Made Available to the Company, which provides for at-will employment and which does not provide for severance, acceleration or post-termination benefits, and (ii) statements of work for consultants in the Ordinary Course of Business using Parent's standard, unmodified form Made Available to the Company which provides for not more than 30 days' notice of termination, and does not provide for any severance, acceleration or post-termination benefits or similar payments upon termination), or enter into any collective bargaining agreement (unless required by applicable Law);
(j) make any material changes in its reporting for Taxes or accounting methods; make or rescind any Tax election; make any change to its method or adopt any method of reporting income, deductions, or other Tax items for Tax purposes that is inconsistent with positions taken, elections made or methods used in reporting such Tax items in prior periods (all except as may be required by applicable Law); or settle or compromise any Tax liability;
(k) except as set forth on Section 6.2(k) of the Original Parent Disclosure Schedules, commence any legal proceeding, or settle, compromise or otherwise resolve any litigation or other legal proceedings, involving (i) Intellectual Property that is used in the development or distribution of, or that is incorporated into, any of the following Parent Products or (ii) a payment of more than $25,000 in any one case by or to Parent or any Parent Subsidiary;
(l) except as set forth on Section 6.2(l) of the Original Parent Disclosure Schedules, (i) incur, or permit or suffer any Parent Subsidiary to incur, any Indebtedness other than (A) short-term borrowings incurred in the Ordinary Course of Business not to exceed $100,000 in the aggregate, and (B) borrowings incurred on commercially reasonable terms to refinance Indebtedness existing on the date of this Agreement, in an aggregate principal amount of no more than the principal amount of such refinanced Indebtedness; provided that Parent or the Parent Subsidiary, as the case may be, shall be entitled to prepay such Indebtedness without penalty or more than one Business Day advance notice, or (ii) Amend the terms of any existing Indebtedness of Parent or any Parent Subsidiary;
(m) assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other Person, or make any loans or advances, except (i) to or for the benefit of the Parent Subsidiaries in the Ordinary Course of Business, or (ii) for those not in excess of $50,000 in the aggregate;
(n) create or assume any material Encumbrance on any Property owned by Parent or any Parent Subsidiary;
(o) pay or discharge any claims or Liabilities other than the payment in the Ordinary Course of Business of claims or Liabilities that were reflected on the Parent Balance Sheet or that were incurred after the date of the Parent Balance Sheet in the Ordinary Course of Business;
(p) write off any accounts or notes receivable in excess of $25,000 in the aggregate;
(q) make or commit to make capital expenditures in excess of $25,000 in any three month period after the date of this Agreement;
(i) make any loans or advances to any Person (including any officer, director, employee or consultant of Parent or any Parent Subsidiary), other than (A) routine travel advances and sales commission draws to employees of Parent or any Parent Subsidiary in the Ordinary Course of Business, (B) pawn loans secured by tangible personal property made in the Ordinary Course of Business and on standard terms, and (C) unsecured payday loans made in the Ordinary Course of Business by a Parent Subsidiary and on standard terms, or (ii) forgive or discharge in whole or in part any outstanding loans or advances, or otherwise materially Amend any loan or advance previously made other than loans or advances by Parent to any Parent Subsidiary in the Ordinary Course of Business related to inter-company financings;
(s) make any investments in, purchase any Securities of or make any capital contributions to any Person, other than a wholly-owned Parent Subsidiary;
(t) enter into any Contract that limits or otherwise restricts Parent or any Parent Subsidiary from engaging or competing in any line of business or in any geographic area, or which provides exclusive rights or "most favored nation" rights of any kind or scope to any party;
(u) terminate, Amend or waive any provision of any standstill agreement to which it is a party, or any confidentiality agreement not entered into in the Ordinary Course of Business, or fail to enforce, to the fullest extent permitted by Law, the provisions of such an agreement;
(v) terminate, or Amend in any material respect, any Parent Material Contract, or enter into any Contract that would have been a Parent Material Contract if it were in effect on the date hereof, except for agreements with auction houses, distributors and customers on standard forms entered into or Amended in its Ordinary Course of Business;
(w) intentionally take any action or willfully omit to take any required action that would make any representation or warranty of Parent or Merger Sub contained in Article V or in any Related Agreement to which Parent or Merger Sub, as the case may be, is a signatory inaccurate in any material respect at, or as of any time prior to, the Effective Time, or fail to cure or cause Merger Sub to cure, as the case may be, such action or inaction within thirty (30) days after notice thereof, except as expressly permitted by this Agreement; or
(x) take or agree to take any of the actions described in subsections (a)-(w) of this Section 6.2 or which prevents Parent from performing, or causes Parent not to perform, one or more of the covenants required hereunder to be performed by Parent. Notwithstanding the foregoing, to the extent that Parent cannxx, xxspite using its Best Efforts, both comply with the covenants of this Section 6.2 and mandatory provisions of applicable Law, then Parent shall be entitled to take action, or refuse to take action, required by this Section 6.2 without the prior written consent of by the Company, provided Parent provides written notice thereof to the Company (which consent as promptly as practicable and provided further that this sentence shall not be unreasonably withheld, conditioned or delayed):
(a) amend or otherwise change its articles of incorporation or bylaws or equivalent Organizational Documents;
(b) take any action that would prevent the Merger from qualifying as a reorganization within the meaning given effect for purposes of Section 368(a) of the Code;
(c) take any action that would be reasonably likely to delay the effectiveness of the Registration Statement; or
(d) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing7.3.
Appears in 1 contract
Conduct of Business by Parent Pending the Closing. Parent agrees that, between From the date of this Agreement and Execution Date until the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement or as required by applicable Law or the regulations or requirements of the Exchange, unless the Company shall otherwise consent in writing (writing, which consent shall not be unreasonably withheld, conditioned or delayed)except as otherwise expressly permitted by or provided for in this Agreement, Parent willshall, and will shall cause each Parent Subsidiary of its Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice and in compliance in all material respects with all applicable Laws and use its commercially reasonable best efforts to preserve substantially intact its their respective business organization organizations and goodwill. In addition to and without limiting the generality of the foregoing, and (B) conduct its operations except as otherwise expressly permitted by or provided for in the ordinary and usual course of business substantially consistent with past practice. During the period this Agreement, from the date of this Agreement to hereof until the Effective Time, Merger Sub without the prior written consent of the Company, which consent shall not engage in any activities of any nature except as provided in or contemplated by this Agreement. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.2 of the Parent Disclosure Schedule, as specifically contemplated by any other provision of this Agreement, or as required by applicable Law or the regulations or requirements of the Exchangebe unreasonably withheld, Parent shall not, and shall not permit any Parent Subsidiary of its Subsidiaries to, between the date of this Agreement and the Effective, directly or indirectly, do any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed):following:
(a) amend adopt or otherwise propose any material change in its articles certificate of incorporation or bylaws bylaws, except for such amendments (i) required by any applicable Law or equivalent Organizational Documentsthe rules and regulations of the SEC or the NASDAQ or (ii) that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect;
(b) take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(c) take any action that would be reasonably likely to delay the effectiveness of the Registration Statement; or
(d) authorize or enter into any agreement sell, lease, pledge, or otherwise make dispose of or encumber any commitment to do any properties or assets of Parent or its Subsidiaries, except for (i) the foregoing.sale of inventory in the ordinary course of business and
Appears in 1 contract
Samples: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
