Conduct of Business by Parent Pending the Merger. From the date of this Agreement to the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Letter: (a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary; (b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries; (c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and (e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 4 contracts
Samples: Merger Agreement (Tenet Healthcare Corp), Merger Agreement (Littlejohn Joseph & Levy Fund L P), Merger Agreement (Ornda Healthcorp)
Conduct of Business by Parent Pending the Merger. From Parent ------------------------------------------------ covenants and agrees that, during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company shall otherwise agree in writing, continue to conduct its business, and cause its Subsidiaries to continue to conduct their respective businesses, in a manner designed in its reasonable judgment, to enhance the long-term value of the Parent Common Stock and the business prospects of Parent and its Subsidiaries and to the extent consistent therewith use all reasonable best efforts to preserve intact the core businesses and goodwill of Parent and its Subsidiaries with their respective present officers, employees, consultants, customers, suppliers and other persons with which Parent or any of its Subsidiaries has significant business relations; provided, that the foregoing shall not prevent Parent or any of its Subsidiaries from acquiring any assets or other businesses or from discontinuing or disposing of any of their respective assets or businesses if such action is, in the judgment of Parent, desirable in the conduct of the business of Parent and such Subsidiaries. By way of amplification and not limitation, except as otherwise contemplated by this Agreement or as described on SCHEDULE 6.02, Parent shall not, during the Parent Disclosure Letterperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Company:
(a) amend or otherwise change the respective businesses Certificate of Incorporation or By-Laws of Parent and in any manner adverse to the Parent Subsidiaries shall be conducted only in holders of Company Common Stock as compared to the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations current holders of Parent or any Parent SubsidiaryCommon Stock;
(b) Parent shall not except as may be required as a result of a change in law or in generally accepted accounting principles, take any action to change accounting policies or procedures (i) sell or pledge or agree including, without limitation, procedures with respect to sell or pledge any stock owned by it in any revenue recognition, payments of the Parent Subsidiariesaccounts payable and collection of accounts receivable); (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;or
(c) neither Parent nor take, or agree in writing or otherwise to take, any of the Parent Subsidiaries shall actions described in SECTIONS 6.02(a) or (ib) authorize for issuance, issue or sell any additional shares ofabove, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take make any action that would jeopardize qualification of the Merger as a reorganization within the meaning representations or warranties of section 368(a) of the CodeParent contained in this Agreement untrue or incorrect or prevent Parent or Acquisition Sub from performing or cause Parent or Acquisition Sub not to perform their respective covenants hereunder.
Appears in 3 contracts
Samples: Merger Agreement (Xpedite Systems Inc), Merger Agreement (Premiere Technologies Inc), Merger Agreement (Premiere Technologies Inc)
Conduct of Business by Parent Pending the Merger. From Except as expressly contemplated by any other provision of this Agreement, Parent agrees that from the date of this Agreement to until the earlier of the termination of this Agreement and the Effective Time, unless Company shall otherwise agree in writingdirectly or indirectly (including on behalf of Merger Sub), do, or as otherwise contemplated by this Agreement propose to do, any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or the Parent Disclosure Letter:delayed):
(a) the respective businesses amend or otherwise change its Certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Incorporation or any Parent SubsidiaryBy-laws or equivalent organizational documents;
(b) Parent shall not issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding any class of capital stock stock, or declareany options, set aside or pay any dividend warrants, convertible securities or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares ofof such capital stock, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities ownership interest (including, without limitation, any phantom interest), in each case other than stock options or other equity compensation grants or shares issued as in connection therewith issued in the ordinary course of business and consistent with past practices; practices pursuant to existing equity incentive compensation or similar plans or (iiiii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary except in the ordinary course of business and in a manner consistent with past practices; practice, any assets valued in excess of $50,000 in the aggregate;
(c) declare, set aside, make or (iv) enter into pay any contractdividend or other distribution, agreementpayable in cash, commitment stock, property or arrangement otherwise, with respect to any of the foregoingits capital stock, except for dividends by a subsidiary of Parent to Parent or another subsidiary of Parent;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiariesreclassify, to keep available the services combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andcapital stock;
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take engage in any action that would jeopardize qualification of could reasonably be expected to cause the Merger to fail to qualify as a reorganization within the meaning of “reorganization” under section 368(a) of the Code;
(f) take any action to cause Parent’s and Merger Sub’s representations and warranties set forth in Article V to be untrue in any material respect (it being agreed that any breach of this subsection 6.02(f) shall, for the purposes of Article X, be deemed to be a breach of Parent’s or Merger Sub’s representations and warranties, and not a breach of Parent’s or Merger Sub’s covenants); or
(g) take any action not contemplated herein that what would reasonably be likely to materially delay the Merger not in furtherance thereof.
Appears in 2 contracts
Samples: Merger Agreement (Navarre Corp /Mn/), Merger Agreement (Navarre Corp /Mn/)
Conduct of Business by Parent Pending the Merger. From Parent agrees that, between the date of this Agreement to and the Effective Time, except as expressly contemplated by any other provision of this Agreement or as set forth in Section 6.02 of the Parent Disclosure Schedule, unless the Company shall otherwise agree consent in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Lettershall not:
(a) amend or otherwise change its memorandum of association or bye-laws in a manner adverse to the respective businesses stockholders of the Company as opposed to any other holders of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent SubsidiaryCommon Shares;
(b) issue, sell, or grant, or authorize the issuance, sale or grant of, any share capital of Parent shall not except (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; for fair market value, (ii) amend its Articles of Incorporation or By-Laws; as dividend payments on Parent Preference Shares or (iii) splitupon the vesting of restricted stock units or the exercise of options, combine or reclassify any shares of its outstanding capital stock or declarewarrants, set aside or pay any dividend convertible securities or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares ofshare capital of Parent which were issued with an exercise or conversion price of not less than the market price at the time of issuance; provided, its capital that the foregoing shall not prohibit issuances of Parent Common Shares, restricted stock units, options or rights as part of any class (whether through normal employee compensation in the ordinary course of business; provided further, that this Section 6.02(b) shall not prohibit the issuance or granting of share capital, restricted stock units, options, warrants, commitmentsconvertible securities or other rights in connection with the acquisition of another entity or business;
(c) declare, subscriptionsset aside, rights to purchase make or pay any dividend or other distribution, payable in cash, shares, property or otherwise), with respect to any of its share capital, except for unissued shares of (i) regular quarterly dividends on Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, Shares declared and paid in cash at times and in amounts consistent with past practice or (ii) incurdividends on Parent Preference Shares declared and paid in accordance with the terms of the certificates of designation of such shares;
(d) reclassify, assume combine, split or prepay subdivide its share capital without appropriate adjustment being made to the Per Share Merger Consideration payable to the holders of Shares in the Merger;
(e) acquire (including by merger, consolidation, acquisition of stock or other equity interests of any indebtedness corporation, partnership, other business organization or any division thereof or any other business combination) assets if such acquisition would be reasonably likely to materially delay or prevent the Merger or is for consideration (including the assumption of debt) with a value in excess of the amount set forth in Section 6.02 of the Parent Disclosure Schedule;
(f) make any material liabilities change, other than reasonable and usual changes in the ordinary course of business and consistent with past practicespractice, or as may be required by GAAP or as a result of a change of law, with respect to accounting policies or procedures;
(g) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; or
(iiih) assumeannounce an intention, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contractagreement or otherwise make a commitment, agreement, commitment or arrangement with respect to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Corn Products International Inc), Merger Agreement (Bunge LTD)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, from the date of this Agreement to hereof until the Effective Time, unless Company shall otherwise agree in writing, or except as otherwise contemplated by this Agreement or set forth on Schedule 6.2(a) of the Parent Disclosure Letter, unless the Company shall otherwise consent (which consent shall not be unreasonably withheld) in writing (including electronic mail) or except as expressly permitted or required pursuant to this Agreement:
(a) the respective The businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there Parent and the Parent Subsidiaries shall be no material changes in use their reasonable best efforts to maintain their assets and preserve intact their respective business organizations, to maintain their assets and significant beneficial business relationships with suppliers, contractors, distributors, customers, licensors, licensees and others having business relationships with them and to keep available the conduct services of the operations of Parent or any Parent Subsidiary;their current key officers and employees.
(b) Without limiting the generality of Section 6.2(a), except (i) as set forth on Schedule 6.2(b) of the Parent Disclosure Letter, (ii) as contemplated by this Agreement, (iii) as required by applicable Law and (iv) for intercompany transactions between the Parent Subsidiaries or Parent and the Parent Subsidiaries, Parent shall not directly or indirectly do any of the following:
(i) sell or pledge acquire or agree to sell acquire by merging or pledge consolidating with any stock owned by it in any business or corporation, partnership or other business organization or division thereof, if such transaction would prevent or materially delay the consummation of the Parent Subsidiaries; transactions contemplated by this Agreement;
(ii) amend its Articles of Incorporation or By-Laws; or (iii) splitexcept for regular quarterly cash dividends consistent with the amount announced by Parent on October 20, combine or reclassify any shares of its outstanding capital stock or 2014, subject to increase by no more than 10% on a quarterly basis, declare, set aside or pay any dividend or other distribution payable in cash, stock or propertycapital stock, or redeem property or otherwise acquire with respect to any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesstock;
(ciii) neither Parent nor any of amend or propose to amend, in a manner that would be adverse to the Parent Subsidiaries shall (i) authorize for issuance, issue Company or sell any additional shares of, or rights of any kind to acquire any shares ofits stockholders, its capital stock of any class charter or bylaws (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or constituent documents);
(iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification reasonably be expected to (A) result in any inaccuracy of a representation or warranty herein that would allow for a termination of this Agreement, (B) cause any of the conditions precedent to the transactions contemplated by this Agreement to fail to be satisfied or (C) prevent, materially delay or materially impede the consummation of the Merger or any other transaction contemplated by this Agreement;
(v) take any action, cause any action to be taken, knowingly fail to take any action or knowingly fail to cause any action to be taken, which action or failure to act would prevent or impede, or would be reasonably likely to prevent or impede, the Merger from qualifying as a reorganization within the meaning of section Section 368(a) of the Code;
(vi) adopt a plan of complete or partial liquidation or dissolution of Parent or any of its material Subsidiaries; or
(vii) take or agree in writing to take any of the actions precluded by Section 6.2(b).
Appears in 2 contracts
Samples: Merger Agreement (Halliburton Co), Merger Agreement (Baker Hughes Inc)
Conduct of Business by Parent Pending the Merger. (a) Except as expressly contemplated or permitted by this Agreement or as set forth on Section 7.2(a) of the Parent Disclosure Letter, from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement pursuant to Article IX, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), or except as required by Applicable Law, Parent shall, and shall cause its Subsidiaries to, conduct their business in the Ordinary Course of Business in all material respects and, to the extent not inconsistent therewith, use commercially reasonable efforts to (i) preserve substantially intact their current business organizations, (ii) preserve in all respects their relationships with customers, suppliers, licensors, licensees, distributors and other third parties that are material to the operation of the business and (iii) keep available their present officers and key employees; provided, that, in the case of the immediately preceding clauses (ii) and (iii), commercially reasonable efforts shall not be deemed to require Parent or any of its Subsidiaries to exert any efforts with respect to a particular matter that are greater than the 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 Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by Closing and the termination of this Agreement or pursuant to Article IX, except (1) as listed in Section 7.2(b) of the Parent Disclosure Letter:, (2) as required by Applicable Law or Order or (3) as expressly contemplated or permitted by this Agreement, Parent shall not, and shall cause each of its Subsidiaries not to, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned):
(ai) amend or modify the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations Organizational Documents of Parent or any Parent Subsidiaryof its Subsidiaries;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation directly or By-Laws; or indirectly (iiiA) split, combine or reclassify its capital stock or any equity securities or obligations convertible into or exchangeable for, or any other right to acquire, any shares of its outstanding capital stock or declarestock, set aside (B) make, declare or pay any dividend or distribution (other distribution payable than (1) dividends and distributions made, declared or paid to Parent or a Subsidiary of Parent by another Subsidiary of Parent and (2) in cashthe case of Parent, regularly scheduled quarterly cash dividends consistent with past practice) on, or redeem, purchase or otherwise acquire, any shares of its capital stock or propertyany equity securities or obligations convertible into or exchangeable for, or redeem any other right to acquire, any shares of its capital stock or otherwise other securities (other than (1) pursuant to Contracts set forth on Section 7.2(b)(ii) of the Parent Disclosure Letter and (2) the redemption, purchase or acquisition of any such shares, securities, obligations or rights of any wholly owned Subsidiary of Parent), (C) grant any Person any right or option to acquire any shares of its capital stock or any other equity-based compensation award based on shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock (other than (1) pursuant to any Parent Benefit Plan in effect on the date of this Agreement, (2) to Parent or a wholly owned Subsidiary of Parent by another wholly owned Subsidiary of Parent) and (3) to employees and independent sales personnel or distributors in connection with new hires, promotions or similar circumstances in the Ordinary Course of Business), (D) issue, deliver, sell, grant, pledge, dispose of or encumber (other than Permitted Encumbrances) any class shares of its capital stock or any equity securities or obligations convertible into or exchangeable or exercisable for, or any other right to acquire, any shares of its capital stock or such equity securities (whether through other than (1) pursuant to any Parent Benefit Plan in effect as of the date of this Agreement and (2) to Parent or any wholly owned Subsidiary of Parent by another wholly owned Subsidiary of Parent) and except for the issuance or granting delivery of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon pursuant to the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations settlement of any other person other than a option to purchase Parent Subsidiary Common Stock that are outstanding as of the date of this Agreement and in accordance with the ordinary course existing terms thereof or granted pursuant to exception (3) to clause (C) of business and consistent with past practices; this Section 7.2(b)(ii)) or (ivE) enter into any contract, agreement, commitment or arrangement Contract with respect to any the sale, voting, registration or repurchase of the foregoingits capital stock;
(diii) merge with, enter into a consolidation with or acquire a substantial portion of the stock, assets or business of any Person or any division or line of business thereof, other than (A) in the case of any asset acquisition, the acquisition of inventory, supplies, equipment and raw materials in the Ordinary Course of Business, (B) transactions for consideration (including the assumption of debt) not exceeding Fifty Million Dollars ($50,000,000) in the aggregate, (C) transactions between or among Parent shall use reasonable efforts to preserve intact the business organization and any wholly owned Subsidiary of Parent or between or among wholly owned Subsidiaries of Parent and the (D) any transactions required to be consummated by Parent or any Subsidiary of Parent pursuant to an existing Contract;
(iv) make any material change in accounting or financial reporting methods, principles or practices used by Parent or any of its Subsidiaries, except to keep available the services extent required by GAAP, any other applicable generally accepted accounting principles or Applicable Law;
(v) (A) make or change any material Tax election, (B) change any material annual Tax accounting period or method of accounting, (C) file any amended Tax Return that is material, (D) enter into any material closing agreement as to Taxes, (E) settle any material Tax claim or assessment or (F) surrender any right to claim a Tax refund to the extent such refund is reflected as an asset on Parent’s financial statements dated as of December 31, 2013, in each case, that would materially increase Parent’s or any of its Subsidiaries’ liability for Taxes in a taxable period or portion thereof beginning after the Closing Date and their present officers and key employees, and to preserve that is not in the goodwill Ordinary Course of those having business relationships with it and the Parent Subsidiaries; andBusiness or required by Applicable Law;
(evi) neither Parent nor sell, lease, pledge or dispose of to any Person, or permit the imposition of any Encumbrance (other than Permitted Encumbrances) on, any of its material properties, assets or lines of business, other than (A) the sale, lease, pledge or disposition or encumbrance of inventory, raw materials, equipment and supplies in the Ordinary Course of Business, (B) transactions for consideration not exceeding Fifty Million Dollars ($50,000,000) in the aggregate, (C) transactions among Parent and wholly owned Subsidiaries shall of Parent or among wholly owned Subsidiaries of Parent and (iD) knowingly take or allow any transactions required to be taken consummated by Parent or any action which would jeopardize the treatment Subsidiary of Parent's acquisition Parent pursuant to an existing Contract;
(vii) adopt a plan of Company as a pooling of interests for accounting purposes; complete or partial liquidation or dissolution or otherwise dissolve, wind-up or effect any restructuring or other reorganization;
(iiviii) knowingly take any action that would jeopardize qualification is reasonably likely to prevent or materially delay or materially impair the consummation of the Merger as a reorganization within the meaning of section 368(a) or any of the Codeother transactions contemplated by this Agreement; or
(ix) agree or commit to take any of the foregoing 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 2 contracts
Samples: Merger Agreement (Zimmer Holdings Inc), Merger Agreement (LVB Acquisition, Inc.)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 7.1, except (A) as may be required by Law, (B) as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (C) as may be expressly contemplated or required pursuant to this Agreement, (D) for any reasonable and good faith actions taken or omitted to be taken, or any plans, procedures and practices adopted, solely to preserve the property and assets of Parent and its Subsidiaries or to protect the safety or health of personnel of Parent and its Subsidiaries in connection with the COVID-19 pandemic, in each case (i) consistent with prior practice or with respect to which Parent has reasonably consulted with the Company (to the Effective Timeextent practicable) and (ii) other than with respect to Sections 5.2(a), unless Company (b), (c), (d), (f), and (h) to which this clause (D) shall otherwise agree not apply or (E) as set forth in writing, or as otherwise contemplated by this Agreement or Section 5.2 of the Parent Disclosure Letter, (x) Parent shall conduct its business in the ordinary course of business and in a manner consistent with past practice and use reasonable best efforts to preserve its assets and business organization and maintain its existing relationships and goodwill with material customers, suppliers, distributors, Governmental Authorities and business partners, and to keep available the services of its officers and key employees, and (y) Parent shall not, directly or indirectly:
(a) the respective businesses of Parent and amend or otherwise change the Parent Organizational Documents or such equivalent organizational or governing documents of any of its Subsidiaries shall in a manner that would be conducted only in materially adverse to the ordinary and usual course Company or its stockholders or would, or would reasonably be expected to, have the effect of business and consistent with past practices, and there shall be no material changes in delaying or preventing the conduct consummation of the operations of Parent Merger or any Parent Subsidiarythe other transactions contemplated by this Agreement;
(b) Parent shall not (i) sell adjust, split, combine, subdivide, reclassify or pledge or agree to sell or pledge any stock owned by it in any otherwise amend the terms of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent SubsidiariesCommon Stock;
(c) neither Parent nor issue, sell, pledge, dispose, encumber or grant, or authorize any of the foregoing with respect to, any shares of Parent’s or its Subsidiaries’ capital stock or other equity interests (other than pledges to the Administrative Agent (as defined in the Parent Subsidiaries shall Credit Agreement) granted pursuant to the terms of the Loan Documents (i) authorize for issuance, issue or sell any additional shares ofas defined in the Parent Credit Agreement), or any options, equity or equity-based compensation, warrants, convertible securities or other rights of any kind to acquire any shares of, of Parent’s or any of its Subsidiaries’ capital stock of any class (whether through or other equity interests; other than the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon pursuant to the exercise of Parent Employee Stock Options, (ii) incur, assume Equity Awards or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingConvertible Notes;
(d) Parent shall use reasonable efforts declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to preserve intact the business organization Parent’s or any of its Subsidiaries’ capital stock or other equity interests, other than dividends and distributions paid by any Subsidiary of Parent and the to Parent Subsidiaries, to keep available the services or any wholly owned Subsidiary of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andParent;
(e) neither grant, confer or award equity or equity-based compensation, options, convertible securities, restricted stock, restricted stock units, deferred stock units or other rights to acquire any of Parent’s or its Subsidiaries’ capital stock or other equity interests;
(f) make any material change to its methods of financial accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization);
(g) announce, implement or effect any facility closing, layoff, early retirement programs, severance programs or reductions in force affecting more than one hundred (100) employees of Parent nor or any of its Subsidiaries at a single site of employment or giving rise to severance or other liabilities or obligations in excess of $5,000,000 in the aggregate with respect to all such actions;
(h) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries (other than any such transaction solely between or involving wholly-owned Subsidiaries of Parent); or
(i) enter into any agreement to do, authorize or adopt any resolutions approving, or announce any intention to do, any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as may be required by Law, (b) as may be agreed in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (c) as otherwise may be expressly contemplated by or permitted pursuant to this Agreement or (d) as set forth in Section 6.2 of the Parent Disclosure Letter, (x) Parent shall, and shall cause its Subsidiaries to, conduct the business of Parent and its Subsidiaries, as applicable, in the ordinary course of business and in a manner consistent with past practice in all material respects (provided that (1) no action by Parent or its Subsidiaries (including Acquisition Sub) with respect to any of the matters specifically addressed by any other provisions of this Section 6.2 will be deemed a breach of this clause (x) unless such action would constitute a breach of one or more such other provisions and (2) acquisitions and dispositions of investments in accordance with Parent’s investment objectives, policies, and restrictions in effect as of the date of this Agreement will not be deemed to be a breach of this clause (x)); and (y) Parent shall not, and shall not permit any of its Subsidiaries to:
(a) amend or otherwise change the respective businesses organizational documents of Parent and (or such equivalent organizational or governing documents of any of its Subsidiaries) in a manner that could reasonably be expected to adversely affect in any material respect the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct rights of the operations holders of Parent or any Parent SubsidiaryCommon Stock;
(b) except for transactions solely among Parent shall not (i) sell or pledge or agree to sell or pledge any stock and its wholly-owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) , split, combine combine, reclassify, redeem, repurchase or reclassify otherwise acquire or amend the terms of any shares of its outstanding capital stock or declare, set aside other equity interests or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesrights;
(c) neither except for transactions solely among Parent nor and its wholly-owned Subsidiaries, issue, sell, pledge, dispose, encumber or grant any of the Parent Subsidiaries shall (i) authorize for issuanceshares of its or its Subsidiaries’ capital stock, issue (ii) options, warrants, convertible securities or sell any additional shares of, or other rights of any kind to acquire any shares of, of its or its Subsidiaries’ capital stock or (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries;
(d) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to Parent’s or any of its Subsidiaries’ capital stock or other equity interests, (a) other than dividends and distributions paid by any wholly-owned Subsidiary of Parent to Parent or any of its wholly-owned Subsidiaries, (b) regular quarterly cash distributions payable by Parent on a quarterly basis consistent with past practices and Parent’s investment objectives and policies as publicly disclosed, or (c) the authorization and payment of any class dividend or distribution necessary for Parent to maintain its qualification as a RIC, as reasonably determined by Parent; or (whether through ii) purchase, redeem or otherwise acquire shares of capital stock or other equity interests of the issuance Company or granting of its Subsidiaries (other than wholly-owned Subsidiaries) or any options, warrants, commitments, subscriptions, or rights to purchase acquire any such shares or otherwiseother equity interests;
(e) acquire (including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation, business combination among Parent and its Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except with respect to acquisitions with collective purchase prices not exceeding $6,000,000 in the aggregate and except for unissued shares acquisitions of Parent Common Stock reserved portfolio investments in accordance with Parent’s investment objectives, policies and restrictions;
(f) incur any long-term indebtedness for issuance upon the exercise borrowed money in an amount in excess of Parent Employee Stock Options$6,000,000 or guarantee any such indebtedness for any Person (other than a Subsidiary) in an amount in excess of $6,000,000, except for indebtedness or guarantees (i) incurred to replace, renew, extend, refinance or refund any existing indebtedness, (ii) incurfor borrowed money incurred pursuant to agreements in effect prior to the execution of this Agreement, assume (iii) incurred under letters of credit in the ordinary course of business, (iv) as otherwise required in the ordinary course of business, (v) to Parent or prepay its Subsidiaries or (vi) in connection with fulfilling Parent’s obligations under Section 6.13;
(g) make any indebtedness material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as otherwise required by Applicable Law;
(i) make or change any material Tax election other than in the ordinary course of business, (ii) change any material liabilities method of Tax accounting other than in the ordinary course of business and consistent with past practices; or (iii) assume, guarantee, endorse agree to any extension or otherwise become liable or responsible waiver of the statute of limitations with respect to a material amount of Tax;
(whether directly, contingently or otherwisei) for the obligations enter into a new line of any other person other than a Parent Subsidiary business outside of Parent’s investment objective as described in the ordinary course Parent SEC Documents (provided, that the foregoing shall not apply in any way to any entity in which Parent or any of business and consistent with past practicesits Subsidiaries has made, makes or proposes to make a debt or equity investment that is or would be reflected in the Schedule of Investments included in Parent’s quarterly or annual reports); or or
(ivj) enter into any contract, agreement, commitment or arrangement with respect agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (OHA Investment Corp), Merger Agreement (Portman Ridge Finance Corp)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated in accordance with Section 7.1, except (i) as may be required by Law, (ii) as may be agreed in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (iii) as otherwise contemplated by may be expressly permitted or required pursuant to this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Letter, Parent shall not, directly or indirectly:
(a) amend the respective businesses Parent Organizational Documents in a manner that would be materially or disproportionately (relative to other holders of Parent and Common Stock) adverse to the Parent Subsidiaries shall Company’s stockholders or would, or would reasonably be conducted only in expected to, have the ordinary and usual course effect of business and consistent with past practices, and there shall be no material changes in delaying or preventing the conduct consummation of any of the operations of Parent Merger or any Parent Subsidiarythe other transactions contemplated by this Agreement;
(b) repurchase or otherwise acquire Parent Common Stock, unless in the ordinary course of business (it being understood that the foregoing shall not restrict Parent from repurchasing or otherwise acquiring shares in connection with the acceptance of shares as payment for the exercise price of equity awards or as payment for Taxes incurred in connection with the exercise, vesting or settlement of equity awards, or the forfeiture of equity awards);
(ic) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside declare or pay any dividend or other distribution payable in cash, stock stock, property or propertyotherwise, or redeem or otherwise acquire any shares of with respect to its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingequity interests;
(d) merge or consolidate Parent shall use reasonable efforts or Merger Sub with any Person or adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization with respect to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andParent;
(e) neither Parent nor adjust, split, combine, subdivide or reclassify Parent’s capital stock; or
(f) enter into any Contract to do, authorize or adopt any resolutions approving, or announce an intention to do, any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)
Conduct of Business by Parent Pending the Merger. From the date of Except as expressly permitted or required by this Agreement Agreement, prior to the Effective Time, unless Company shall otherwise agree in writingneither Parent nor any of its Subsidiaries, or as otherwise contemplated by this Agreement or without the Parent Disclosure Letterprior written consent of Target, shall:
(a) acquire, by merging or consolidating with, or by purchasing an equity interest in or the respective businesses assets of Parent and or by any other manner, any business or corporation, partnership or other business organization or division thereof, or otherwise acquire any assets of any other entity (other than the Parent Subsidiaries shall be conducted only purchase of assets from suppliers, clients or vendors in the ordinary and usual course of business and consistent with past practices, and there shall practice) if such transaction would reasonably be no material changes in expected to prevent or materially delay the conduct consummation of the operations of Parent or any Parent SubsidiaryTransactions;
(b) Parent shall not (i) sell adopt or pledge or agree propose to sell or pledge adopt any stock owned by it in any amendments to its charter documents which would reasonably be expected to have a material adverse impact on the consummation of the Transactions;
(c) with respect to Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) only, split, combine or reclassify any shares of its outstanding capital stock or stock, declare, set aside or pay any dividend or other distribution payable (whether in cash, stock or property, property or redeem or otherwise acquire any shares combination thereof) in respect of its capital stock or shares of the capital stock of otherwise make any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind payments to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), stockholders in their capacity as such except for unissued shares purchases of Parent Common Stock reserved for issuance upon Shares pursuant to stock repurchase plans, unless the exercise Exchange Ratio is proportionately increased or decreased, as applicable, in which case the prior written consent of Parent Employee Stock OptionsTarget shall not be required, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course but Target shall be entitled to written notice of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingsuch event;
(d) Parent shall use reasonable efforts to preserve intact the business organization adopt a plan of Parent and the Parent Subsidiaries, to keep available the services complete or partial liquidation or dissolution of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andParent;
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take take, or allow agree to be taken commit to take, any action which that would jeopardize or would reasonably be expected to result in the treatment failure of Parent's acquisition of Company as a pooling of interests for accounting purposes; condition set forth in Sections 8.1, 8.2, or 8.3 or (iib) at, or as of any time prior to, the Effective Time, or that would reasonably be expected to materially impair the ability of Target, Parent, Merger Sub or the holders of Target Common Shares to consummate the Merger in accordance with the terms hereof or materially delay such consummation;
(f) knowingly take any action that would jeopardize qualification of or could reasonably be expected to disqualify the Merger as a reorganization within the meaning of section Section 368(a) of the Code; or (g) agree or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Stone Energy Corp)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, during the date of this Agreement to the Effective TimeInterim Period, unless Company shall otherwise agree in writing, except as expressly provided or as otherwise contemplated permitted by this Agreement or set forth in Section 4.2 of the Parent Disclosure Letter:
Schedule or unless the Company shall otherwise consent in writing (awhich consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (i) the respective businesses of Parent and the Parent Subsidiaries shall be conducted conduct its business only in the ordinary and usual course of business and business, consistent with past practicespractice and (ii) not take any action, or fail to take any action, except in the ordinary course of business, consistent with past practice. By way of amplification and not limitation, except as expressly provided or permitted by this Agreement or as set forth in Section 4.2 of the Parent Disclosure Schedule, during the Interim Period, Parent shall not, and there shall be no material changes in the conduct cause each of its Subsidiaries not to, directly or indirectly, do any of the operations following without the prior written consent of Parent or any Parent Subsidiary;
the Company (b) Parent which consent shall not be unreasonably withheld, conditioned or delayed):
(i) sell amend its Certificate of Incorporation or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; Bylaws;
(ii) amend its Articles Merger Sub’s Certificate of Incorporation or By-Laws; or Bylaws;
(iii) splitengage in any repurchase at a premium, combine recapitalization, restructuring or reclassify reorganization with respect to any shares of its outstanding Parent’s capital stock or stock;
(iv) declare, set aside or pay any extraordinary dividend or other extraordinary distribution payable (whether in cash, stock or other securities or property, or redeem or otherwise any combination thereof) in respect of any of Parent’s capital stock;
(v) acquire any shares (by merger, consolidation, acquisition of its capital stock or shares assets or otherwise) a significant portion of the capital stock or other equity interests in, or assets of, any corporation, limited liability company, partnership, joint venture or other business organization or division thereof, or enter into any definitive agreement with respect thereto, unless such acquisition or the entering into of such definitive agreement would not reasonably be likely to delay the effectiveness of the Registration Statement or the convening of the Company Special Meeting or the Parent Special Meeting or delay the receipt of any consent or approval of any Governmental Authority or other third party necessary to consummate the Parent SubsidiariesMerger or make it reasonably likely that any such consent or approval would not be forthcoming in a timely manner;
(cvi) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that (without regard to any action taken, or agreed to be taken, by the Company or any of its Affiliates) would jeopardize qualification of be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of section Section 368(a) of the Code;
(vii) take any action or fail to take any reasonable action permitted by this Agreement if such action or failure to take action would reasonably be expected to result in either (A) any of the representations and warranties of Parent or Merger Sub set forth in Section 3 of this Agreement becoming untrue in any material respect or (B) any of the conditions to the Closing set forth in Section 6 of this Agreement not being satisfied as of the Closing Date; or
(viii) enter into any agreement or contract to do any of the foregoing. If Parent desires to take an action that requires the prior written consent of the Company pursuant to this Section 4.2, Parent shall deliver to the Company a written request for such written consent, accompanied by a reasonably detailed description of the action sought to be taken and reasonable documentation and other information supporting Parent’s request. If the Company reasonably seeks any additional documentation or other information in order to decide whether to approve Parent’s request, then Parent shall supply such additional documentation or other information to the Company as promptly as reasonably practicable. The Company shall use commercially reasonable efforts to approve or deny Parent’s request within five Business Days after the Company has received all documentation and other information supporting Parent’s request, including any additional documentation or other information sought by the Company. Parent shall provide any request pursuant to this Section 4.2 in accordance with Section 4.2 of the Parent Disclosure Schedule, as well as to the persons identified in Section 8.2 hereof in accordance with the procedures set forth therein. If no such consent or denial is received by Parent by the conclusion of such five Business Day period, the Company shall be deemed to have granted its consent to the action set forth in such request.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xenogen Corp), Merger Agreement (Xenogen Corp)
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that, during the date of this Agreement to the Effective TimeInterim Period, unless Company shall otherwise agree in writing, except as expressly provided or as otherwise contemplated permitted by this Agreement or set forth in Section 5.2 of the Parent Disclosure LetterMemorandum or unless the Company shall otherwise consent in writing, Parent shall, and shall cause its Subsidiaries to:
(ai) the respective businesses of Parent and the Parent Subsidiaries shall be conducted conduct its business only in the ordinary and usual course of business and business, consistent with past practicespractice, and there in compliance in all material respects with applicable Law; (ii) not take any action, or fail to take any action, except in the ordinary course of business, consistent with past practice; and (iii) preserve intact its business organization, properties and assets, keep available the services of its officers and other key employees, maintain in effect all Parent Material Contracts, and preserve its relationships with customers, licensors, licensees, suppliers, distributors and other Persons with which they have business relations with the intention that is goodwill and ongoing business shall be no material changes preserved. By way of amplification and not limitation, except as expressly permitted by this Agreement or as set forth on Section 5.2 of the Parent Disclosure Memorandum, neither Parent nor any of its Subsidiaries shall, during the Interim Period, directly or indirectly, do any of the following without the prior written consent of the Company:
(i) amend its Articles or Certificate of Incorporation, Bylaws or other equivalent organizational documents, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise (except as set forth in the conduct Charter Amendment);
(ii) issue, deliver, grant, sell, transfer, pledge, dispose of the operations or encumber any shares of capital stock of any class, any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any “phantom” stock, “phantom” stock right, stock appreciation rights or stock based performance units, of Parent or any of its Subsidiaries (except for the issuance of shares of Parent SubsidiaryCommon Stock upon the exercise of Parent Stock Options, or the granting of Parent Stock Options in the ordinary course of business, such as the Parent’s annual grants of Parent Stock Options to its officers, employees, directors, consultants, agents, independent contractors or other individual service providers);
(biii) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of capital stock of Parent shall not or any equity interest in or securities of any of its Subsidiaries, other than (i) sell or pledge or agree repurchases of Parent Common Stock pursuant to sell or pledge any stock owned by it right of repurchase pursuant to agreements existing prior to the date hereof between Parent and the holder of such shares of Parent Common Stock (ii) in connection with any “cashless exercise” of any Parent Stock Options in accordance with the terms of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or Stock Plans in accordance with the terms thereof and (iii) splitrecapture of shares subject to Parent Stock Options which expires;
(iv) sell, combine transfer, pledge, dispose of or reclassify encumber any shares material properties, facilities, equipment or other assets, except for (A) sales of its outstanding capital stock inventory in the ordinary course of business, (B) pledges of up to $500,000 in assets, (C) sales of equipment in the ordinary course of business where any such sales do not exceed $200,000 individually or $500,000 in the aggregate, and (D) the sublease or sale of leased space of the former cardiovascular facility of Regeneration Technologies, Inc.-Cardiovascular, a wholly-owned subsidiary of Parent, comprising 9,745 square feet located at 000 Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx, and the leasehold improvements made to and the equipment located at such property;
(v) declare, set aside or pay any dividend or other distribution payable (whether in cash, stock or other securities or property, or redeem any combination thereof) in respect of any of its capital stock or otherwise acquire other equity interests (except that any of the Subsidiaries of Parent may declare and pay cash dividends to Parent);
(vi) split, combine or reclassify any shares of its capital stock or other securities or equity interests, or, except as set forth in Section 5.2(a)(ii) above, issue any other securities in respect of in lieu of or in substitution for shares of the its capital stock of any of the Parent Subsidiariesor equity interests;
(cvii) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; practice, sell, transfer, lease, license, sublicense, mortgage, pledge, encumber, grant or otherwise dispose of any Parent Intellectual Property, or amend or modify in any material respect any existing material agreements with respect to any Parent Intellectual Property;
(iiiviii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) an interest in any corporation, limited liability company, partnership, joint venture or other business organization or division thereof;
(ix) incur any indebtedness for borrowed money or issue or sell any debt securities or assume, guarantee, guarantee (other than guarantees of bank debt of the Parent’s Subsidiaries entered into in the ordinary course of business) or endorse or otherwise as an accommodation become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Person, or make any loans or advances to, or capital contribution or investments in, or enter into any financial commitments or lease commitments with, any other person Person, except in each case as otherwise permitted under any loan or credit agreement to which Parent or any of its Subsidiaries is a party as of the date of this Agreement, provided, however that such amounts as otherwise permitted under such loan or credit agreement shall not exceed $500,000 in the aggregate;
(x) make any capital expenditures (including leases) or enter into any agreement or agreements providing for payments which, when added together with all other capital expenditures made by Parent since the date of this Agreement, exceed $5,000,000;
(xi) take or permit to be taken any action to: (A) increase the wages, salaries, bonus or other compensation payable or to become payable to its officers, employees, directors, consultants, agents, independent contractors or other individual service providers, except for increases in compensation required by agreements entered into prior to the date of this Agreement, or made in the ordinary course of business, such as Parent’s annual increase in the compensation of such persons; (B) establish, adopt, renew, enter into or amend in any material respect any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any of its directors, officers or employees, or any collective bargaining agreement; (C) pay any bonuses in amounts greater than $1,500,000; or (D) hire any employee at a level of Vice President or above or with an annual base salary in excess of $150,000.
(xii) make any material changes to the personnel or business policies of Parent;
(xiii) change any accounting policies, procedures or practices (including procedures with respect to reserves, revenue recognition, payments of accounts payable and collection of accounts receivable), unless required by statutory accounting principles or GAAP;
(xiv) create, incur, suffer to exist or assume any Lien on any of its material properties, facilities or other assets, other than any Lien for Taxes not yet due and any Lien that would not reasonably be expected to have a Parent Subsidiary Material Adverse Effect;
(xv) other than in the ordinary course of business and consistent with past practices; or practice, (ivA) enter into any contractParent Material Contract; (B) modify, agreementamend, commitment extend or arrangement transfer in any material respect or terminate (other than in accordance with its terms) any Parent Material Contract or waive, release or assign any material rights or claims thereto or thereunder; or (C) enter into or extend any lease with respect to real property;
(xvi) enter into, negotiate or extend (including through any failure to act to prevent an extension) any contracts, agreements or arrangements relating to the research, clinical trial, development, distribution, sale, supply, license, marketing, co-promotion or manufacturing by third parties of products (including products under development) of Parent or any of its Subsidiaries or products (including products under development) licensed by Parent or any of its Subsidiaries, or the Parent Intellectual Property, in each case, except in the ordinary course of business;
(xvii) make any Tax election or settle or compromise any material federal, state, local or foreign Tax liability, or agree to an extension of a statute of limitations with respect thereto;
(xviii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities disclosed, reflected or reserved against in the most recent financial statements (or, if applicable, the notes thereto) of Parent included in the Parent SEC Reports publicly available prior to the date hereof (for amounts not in excess of such reserves), (B) cancel any indebtedness, (C) waive or assign any claims or rights of substantial value or (D) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any confidentiality or similar contract, agreement or arrangement to which Parent or any of its Subsidiaries is a party;
(xix) fail to maintain in full force and effect all insurance policies currently in effect, or permit any of the foregoingcoverage thereunder to lapse, in each case without simultaneously securing replacement insurance policies which will be in full force and effect and provide coverage substantially similar to or greater than under the prior insurance policies;
(dxx) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that (without regard to any action taken, or agreed to be taken, by Company or any of its Affiliates) would jeopardize qualification of be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of section Section 368(a) of the Code;
(xxi) take any action or fail to take any reasonable action permitted by this Agreement if such action or failure to take action would reasonably be expected to result in either (A) any of the representations and warranties of the Parent set forth in Section 4 of this Agreement becoming untrue in any material respect or (B) any of the conditions to the Closing set forth in Section 7 of this Agreement not being satisfied as of the Closing Date;
(xxii) sell, assign, transfer, encumber, enter into any license or covenant not to xxx with respect to, grant any right with respect to, or otherwise dispose of, or abandon or fail to maintain, or enter into any settlements or arrangements with respect to, any Parent Intellectual Property or any third party Intellectual Property, in each case, other than in the ordinary course of business;
(xxiii) take any other action with respect to any Parent Intellectual Property other than prosecution of patent and trademark applications in the ordinary course of business consistent with past practice and payment of any fees or other actions required to maintain such Parent Intellectual Property; or
(xxiv) enter into any agreement or contract to do any of the foregoing.
(b) During the Interim Period, Parent shall, and shall cause its Subsidiaries to: (i) solicit and accept customer orders in the ordinary course of business; and (ii) cooperate with the Company in communicating with suppliers, collaborators, customers and licensors to facilitate the post-Closing integration of the business of Parent and its Subsidiaries with the business of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Regeneration Technologies Inc), Merger Agreement (Tutogen Medical Inc)
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that between the date of this Agreement to and the Effective Time, unless the Company shall otherwise agree in writing, writing (and except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise contemplated expressly contemplated, permitted or required by this Agreement Agreement), Parent and its Subsidiaries shall, (i) maintain its existence in good standing under applicable Law and (ii) comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;Exchange Act.
(b) Without limiting the foregoing, Parent covenants and agrees that between the date of this Agreement and the Effective Time, Parent shall not not, nor shall it permit any of its Subsidiaries to (except as expressly contemplated, permitted or required by this Agreement, as set forth on the applicable subsection of Section 5.2(b) of the Parent Disclosure Letter or with the prior written approval of the Company): (i) sell declare, set aside, make or pledge pay any dividends or agree to sell other distributions (whether in cash, stock or pledge any stock owned by it property) in respect of any of the Parent Subsidiariesits capital stock; (ii) amend its Articles of Incorporation or By-Laws; or (iii) adjust, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or declarestock; (iii) repurchase, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire acquire, directly or indirectly, any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicesRights; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification reasonably be expected to result in any of the conditions set forth in Article VI not being satisfied or that would impair the ability of Parent to consummate the Merger as a reorganization within in accordance with the meaning terms hereof or materially delay such consummation; (v) amend the Parent Certificate of section 368(aIncorporation or Parent Bylaws; or (vi) agree to take any of the Codeactions described in this Section 5.2(b).
Appears in 2 contracts
Samples: Merger Agreement (Trubion Pharmaceuticals, Inc), Merger Agreement (Emergent BioSolutions Inc.)
Conduct of Business by Parent Pending the Merger. From (a) Parent agrees that, between the date of this Agreement to and the Effective Time, except as set forth in Section 5.02 of the Parent Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Company shall otherwise agree consent in writing, writing (which consent shall not be unreasonably withheld or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:delayed):
(ai) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;practice; and
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use its reasonable best efforts to preserve substantially intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its the current officers, employees and their present officers consultants of Parent and key employees, the Parent Subsidiaries and to preserve the goodwill current relationships of those having business relationships with it Parent and the Parent Subsidiaries; andSubsidiaries with customers, suppliers and other persons with which Parent or any Parent Subsidiary has significant business relations.
(eb) Except as expressly contemplated by other provisions of this Agreement or as set forth in Section 5.02 of the Parent Disclosure Schedule, neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed):
(i) amend or otherwise change Parent’s or Merger Sub’s certificate of incorporation or by-laws or the certificate of incorporation, by-laws or equivalent organizational documents of any Parent Subsidiary that is not wholly-owned, directly or indirectly, by Parent;
(ii) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (A) any shares of any class of capital stock or Voting Debt of Parent or any Parent Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary, except for (I) the issuance of any shares of capital stock pursuant to Parent Stock Options outstanding on the date hereof or (II) the granting of stock options, restricted stock awards or restricted stock units (or any combination thereof) with respect to an aggregate of up to 100,000 shares of Parent Common Stock under any existing Parent Plan to employees who are not subject to a change of control provision in any such Parent Plan that is triggered by the Merger or (B) any assets of Parent or any Parent Subsidiary, except in the ordinary course of business consistent with past practice;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Parent Subsidiary to Parent or any other Parent Subsidiary;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the capital stock of Parent or Merger Sub or any other Parent Subsidiary (except with respect to direct or indirect wholly-owned Subsidiaries of Parent);
(v) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or, outside the ordinary course of business, any significant amount of assets for a purchase price or having a fair market value of greater than $3,000,000 in the aggregate; (B) dispose of (including, without limitation, by sale of assets or stock or any other transaction) any material portion of its business or assets outside the ordinary course of business consistent with past practice; (C) except for intercompany indebtedness between the Parent and, or among, wholly-owned direct or indirect Parent Subsidiaries and borrowings or proceeds under existing credit facilities (including through sales of receivables), incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person (other than obligations of direct or indirect wholly-owned Parent Subsidiaries), or make any loans or advances, or grant any security interest in any of its assets; (D) enter into any other material Contract other than in the ordinary course of business consistent with past practice; or (E) authorize, or make any commitment with respect to, any capital expenditure of the Parent or the Parent Subsidiaries which is in excess of the amounts set forth in Section 5.02 of the Parent Disclosure Schedule;
(vi) increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of Parent or any Parent Subsidiary, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or of any Parent Subsidiary, or establish, adopt, enter into or amend any Parent Plan or collective bargaining agreement (other than a renewal of an existing collective bargaining agreement), other than any amendments (x) required by Law or (y) that would not result in a material increase in benefits thereunder;
(vii) change in any material respect its accounting principles, methods or practices as in effect on the date hereof, except as required by GAAP;
(viii) make, change or revoke any material Tax election, settle or compromise any Tax liability or consent to any claim or assessment in an amount exceeding $300,000 relating to Taxes or grant any waiver of the statute of limitations for any such claim or assessment;
(ix) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the ordinary course of business consistent with past practice;
(x) amend, modify or consent to the termination of any Material Parent Contract, or amend, waive, modify or consent to the termination of Parent’s or any Parent Subsidiary’s material rights thereunder, other than in each case in the ordinary course of business consistent with past practice, provided that neither Parent nor any Parent Subsidiary shall amend, modify or consent to the termination of any Parent Debt Agreement (ior any rights of Parent or any Parent Subsidiary thereunder);
(xi) knowingly take settle any material Action;
(xii) permit any item of Parent Owned Intellectual Property to lapse or allow to be taken abandoned, dedicated, or disclaimed, fail to perform or make any action which would jeopardize the treatment applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each item of Parent's acquisition of Company as Parent Owned Intellectual Property; or
(xiii) enter into any agreement or otherwise make a pooling of interests for accounting purposes; or (ii) knowingly take binding commitment, to do any action that would jeopardize qualification of the Merger as a reorganization within the meaning foregoing in violation of section 368(a) of the Codethis Section 5.02(b).
Appears in 2 contracts
Samples: Merger Agreement (Commonwealth Industries Inc/De/), Merger Agreement (Imco Recycling Inc)
Conduct of Business by Parent Pending the Merger. (a) From the date of this Agreement to hereof until the Effective Time, unless the Company shall otherwise agree consent in writing, which consent shall not be unreasonably withheld, or except as listed on Schedule 7.2(a) of the Parent Disclosure Schedule or as otherwise contemplated expressly permitted by or provided for in this Agreement Agreement, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in the Ordinary Course of Business and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with Third Parties, to maintain each rating classification, published or indicative, assigned as of the date hereof by A. M. Best and Standard & Poor’s and to keep available the services of its current key employees, subject to the terms of this Agreement. In addition to and without limiting the generality of the foregoing, except as listed on Schedule 7.2(a) of the Parent Disclosure LetterSchedule or as otherwise expressly permitted by or provided for in this Agreement, from the date hereof until the Effective Time, without the prior written consent of the Company, which consent shall not be unreasonably withheld:
(ai) Parent shall not, and shall not permit its Subsidiaries to, adopt or propose, any material change in its Organizational Documents except for such amendments required by Applicable Law or the respective businesses rules and regulations of the SEC or the NYSE;
(ii) Parent shall not, and shall not permit its Subsidiaries to, declare, set aside or pay any shareholder dividend or other distribution except for (A) any dividend or distribution by a Parent Subsidiary to Parent or another Parent Subsidiary and (B) dividends required to be paid pursuant to the terms of the Parent Preferred Shares or trust preferred securities of Parent and or any of its Subsidiaries outstanding on the date hereof;
(iii) Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practicesnot, and there shall be no material changes in the conduct not permit its Subsidiaries to, enter into any Business Combination Transaction with any Third Party, acquire capital stock or assets of any Third Party, or agree to do any of the operations preceding; provided, however, that a Parent Subsidiary may merge with another Parent Subsidiary;
(iv) Parent shall not, and shall not permit its Subsidiaries to, sell, lease, license, subject to an Encumbrance, or otherwise surrender, relinquish or dispose of any assets or property of Parent or any Parent Subsidiary, other than (A) pursuant to existing written Contracts or commitments, including the posting of collateral to secure letters of credit required to be issued pursuant thereto (the terms of which have been disclosed to the Company prior to the date hereof) or (B) in an amount not in excess of $1.0 million in the aggregate;
(bv) other than issuances of Parent Common Shares in respect of Parent Employee Options outstanding on the date hereof, Parent shall not, and shall not permit its Subsidiaries to: (iA) sell or issue, sell, grant, pledge or agree to sell otherwise encumber any shares of its capital stock or pledge other securities (including any Parent Employee Options, warrants or any similar security exercisable for, or convertible into, such capital stock owned by it in any of the Parent Subsidiariesor similar security); (ii) amend its Articles of Incorporation or By-Laws; or (iiiB) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or authorize the issuance of or issue securities (including Parent Employee Options, warrants or any similar security exercisable for, or convertible into, such capital stock or similar security) in respect of, in lieu of, or in substitution for, its capital stock; (C) take any action that, if such action had been taken prior to the date hereof, would have caused the representation and warranty made in Section 6.3 to be untrue in any material respect; (D) enter into any amendment of any material term of any of its outstanding securities; or (E) accelerate the vesting of any Parent Employee Options (other than as required pursuant to preexisting contractual commitments);
(vi) Parent shall not, and shall not permit its Subsidiaries to incur, guarantee or assume any indebtedness other than short-term borrowings (including letters of credit) and trade payables, in each case, in the Ordinary Course of Business.
(vii) Parent shall not, and shall not permit its Subsidiaries to, enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date of this Agreement, including the reimbursement of reasonable expenses of Parent’s officers and directors in the Ordinary Course of Business;
(viii) Parent shall not, and shall not permit any Parent Subsidiary to, grant any increase in the base salary of directors, officers, employees, consultants or agents of Parent or any Parent Subsidiary (other than increases in the Ordinary Course of Business for employees at will) or increases pursuant to previously existing contractual arrangements;
(ix) except as permitted pursuant to Section 7.2(a)(x) below, Parent shall not, and shall not permit its Subsidiaries to, enter into or materially amend or modify any of the Parent Benefit Plans or any severance, consulting, retention or employment agreement (other than with respect to agreements for new hires of employees in the Ordinary Course of Business or which are terminable by Parent or a Parent Subsidiary before and after the Effective Time without any penalty or cost to Parent, such Parent Subsidiary or any Affiliate thereof; provided, however, that any such agreements may contain customary notice and severance provisions required by Applicable Law);
(x) Parent shall not, and shall not permit its Subsidiaries to, other than in the Ordinary Course of Business and in the exercise of Parent’s business judgment, hire or terminate the employment or contractual relationship of any officer, employee, consultant or agent of Parent or any Parent Subsidiary who is not terminable at will without any penalty or cost to Parent, such Parent Subsidiary or any Affiliate thereof, as the case may be;
(xi) Parent shall not change any method of accounting or accounting principles or practices by Parent or any Parent Subsidiary, except for any such change required by Applicable Law or a change in Applicable Law, U.S. GAAP or SAP;
(xii) Parent shall not, and shall not permit its Subsidiaries to, pay, discharge, settle or satisfy any actual or threatened Proceedings, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) other than any settlement, payment, discharge or satisfaction (A) in the Ordinary Course of Business or (B) with respect to those Proceedings set forth on Schedule 6.9(a) of the Parent Disclosure Schedule, within insurance limits;
(xiii) Parent shall not, and shall not permit its Subsidiaries to, terminate or cancel any insurance coverage maintained by it or any Parent Subsidiary with respect to any material assets which is not replaced by a comparable amount of insurance coverage;
(xiv) Parent shall not, and shall not permit its Subsidiaries to, make or agree to make any new capital expenditure or expenditures other than (A) capital expenditures in accordance with the specified items of, and pursuant to the time frame specified in, the capital expenditure budget delivered to the Company prior to the date hereof and (B) other capital expenditures in an aggregate amount not in excess of $300,000;
(xv) Parent shall not, and shall not permit its Subsidiaries to, enter into any hedging or swap arrangements or Contracts or other similar financing instruments or redeem, repurchase, prepay, defease or otherwise acquire any of the Parent’s indebtedness;
(xvi) Parent shall not, and shall not permit its Subsidiaries to, fail to maintain the Parent Retrocession Agreements in full force and effect;
(xvii) Parent shall not, and shall not permit its Subsidiaries to, fail to (A) timely file or furnish to or with the SEC or any Insurance Regulator all reports, schedules, forms, statements and other documents required to be filed or furnished or (B) comply in all material respects with the requirements of the Sxxxxxxx-Xxxxx Act applicable to it;
(xviii) Parent shall not, and shall not permit its Subsidiaries to, purchase or redeem any shares of the capital stock of Parent or any of the Parent Subsidiary, or any other equity interests or any rights, warrants or Parent Employee Options to acquire any such shares or interests, other than as otherwise contractually required;
(xix) Parent shall not, and shall not permit its Subsidiaries to, enter into, make any proposal for, renew, extend or amend or modify in any material respect, terminate, cancel, or waive, release or assign any right or claim under, any Contract or agreement which is or, if applicable, would be material to Parent or Parent Subsidiaries;
(cxx) neither Parent nor any of the Parent shall not, and shall not permit its Subsidiaries shall to: (i) authorize for issuancesell, issue assign, license, mortgage, pledge, sublicense, encumber, impair, abandon or sell fail to maintain in any additional shares of, or rights of material respect any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of material Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposesIP Rights; or (ii) knowingly take grant, extend, amend, waive or modify any action rights in or to a material portion of the Parent IP Rights;
(xxi) Parent shall not, and shall not permit its Subsidiaries to, make any material change in its underwriting, reinsurance, marketing, claim processing and payment, except as required by concurrent changes in Applicable Law; or reduce the amount of any reserves and other liability accruals held in respect of losses or loss adjustment expenses arising under or relating to Parent Insurance Contracts, other than as required by concurrent changes in Applicable Law and other than as a result of the payment of claims in the Ordinary Course of Business;
(xxii) Parent shall not, and shall not permit its Subsidiaries to, undertake any abandonment, modification, waiver, termination or otherwise change to any Parent Permit, except (i) as is required in order to comply with concurrent changes in Applicable Law, (ii) such modification, changes or waivers of Parent Permits as would not, individually or in the aggregate, restrict the business or operations of Parent or any of its Subsidiaries in any material respect or (iii) such modifications or changes that would jeopardize qualification expand the Parent Permits in a way favorable to Parent;
(xxiii) Parent shall not, and shall not permit any Parent Subsidiary to, (A) surrender any right to claim a material Tax refund or credit, offset or other material reduction in Tax liability or (B) settle any Tax audit, file any Tax Return (other than in manner consistent with past practice), file an amended Tax Return, file a claim for a Tax refund, make or amend any Tax election, consent to any extension of the Merger as limitations period applicable to any Tax claim or assessment, file a reorganization within the meaning request for any Tax ruling with any Governmental Authority or (C) enter into any agreement with respect to Taxes with any Person (including any agreement providing for any Tax indemnification or Tax sharing or allocation) or grant any power of section 368(aattorney with respect to Taxes; and
(xxiv) Parent shall not, and shall not permit any Parent Subsidiary to, agree or commit to do any of the Codeforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Pxre Group LTD), Merger Agreement (Pxre Group LTD)
Conduct of Business by Parent Pending the Merger. From the date of Except as expressly permitted or required by this Agreement Agreement, prior to the Effective Time, unless Company shall otherwise agree in writingneither Parent nor any of its Subsidiaries, or as otherwise contemplated by this Agreement or without the Parent Disclosure Letterprior written consent of Target, shall:
(a) acquire, by merging or consolidating with, or by purchasing an equity interest in or the respective businesses assets of Parent and or by any other manner, any business or corporation, partnership or other business organization or division thereof, or otherwise acquire any assets of any other entity (other than the Parent Subsidiaries shall be conducted only purchase of assets from suppliers, clients or vendors in the ordinary and usual course of business and consistent with past practices, and there shall practice) if such transaction would reasonably be no material changes in expected to prevent or materially delay the conduct consummation of the operations of Parent or any Parent SubsidiaryTransactions;
(b) Parent shall not (i) sell adopt or pledge or agree propose to sell or pledge adopt any stock owned by it in any amendments to its charter documents which would reasonably be expected to have a material adverse impact on the consummation of the Transactions;
(c) with respect to Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) only, split, combine or reclassify any shares of its outstanding capital stock or stock, declare, set aside or pay any dividend or other distribution payable (whether in cash, stock or property, property or redeem or otherwise acquire any shares combination thereof) in respect of its capital stock or shares of the capital stock of otherwise make any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind payments to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), stockholders in their capacity as such except for unissued shares purchases of Parent Common Stock reserved for issuance upon Shares pursuant to stock repurchase plans, unless the exercise Exchange Ratio is proportionately increased or decreased, as applicable, in which case the prior written consent of Parent Employee Stock OptionsTarget shall not be required, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course but Target shall be entitled to written notice of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingsuch event;
(d) Parent shall use reasonable efforts to preserve intact the business organization adopt a plan of Parent and the Parent Subsidiaries, to keep available the services complete or partial liquidation or dissolution of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andParent;
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take take, or allow agree to be taken commit to take, any action which that would jeopardize or would reasonably be expected to result in the treatment failure of Parent's acquisition of Company as a pooling of interests for accounting purposes; condition set forth in Section 8.1, 8.2, or 8.3 or (iib) at, or as of any time prior to, the Effective Time, or that would reasonably be expected to materially impair the ability of Target, Parent, Merger Sub or the holders of Target Common Shares to consummate the Merger in accordance with the terms hereof or materially delay such consummation;
(f) knowingly take any action that would jeopardize qualification of or could reasonably be expected to disqualify the Merger as a reorganization within the meaning of section Section 368(a) of the Code; or (g) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Stone Energy Corp)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company shall otherwise agree in writing, which agreement shall not be unreasonably withheld, delayed, or as conditioned, Parent shall, unless expressly authorized to do otherwise contemplated by this Agreement or the Parent Disclosure Letter:
pursuant to paragraphs (a) through (d) below, in all material respects conduct its business and shall cause the respective businesses of Parent and the Parent Subsidiaries shall its subsidiaries to be conducted only in the ordinary and usual course of business and consistent with past practicespractice, and there Parent shall be no material changes in use reasonable commercial efforts to preserve substantially intact the conduct business organization of Parent and its subsidiaries, to keep available the services of the operations present officers, employees and consultants of Parent and its subsidiaries and to preserve the present relationships of Parent and its subsidiaries with customers, suppliers and other persons with which Parent or any of its subsidiaries has a significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, neither Parent Subsidiarynor any of its subsidiaries shall, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed:
(a) amend or otherwise change the Certificate of Incorporation or By-Laws of Parent in a manner that would adversely affect the holders of Parent Common Stock;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside aside, make or pay any dividend or other distribution payable (whether in cash, stock or property, property or redeem or otherwise acquire any shares combination thereof) in respect of any of its capital stock stock, except that a wholly owned subsidiary of Parent may declare and pay a dividend or shares of the capital stock of any of the Parent Subsidiaries;make advances to its parent or Parent; other than such distributions ordinarily paid on a quarterly basis with respect to certain OP Units.
(c) neither Parent nor any adopt or enter into a plan of the Parent Subsidiaries shall (i) authorize for issuancecomplete or partial liquidation, issue dissolution, merger, consolidation, restructuring, recapitalization or sell any additional shares of, or rights other material reorganization of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise)Parent, except for unissued shares of Parent Common Stock reserved for issuance upon a merger or acquisition which will not impair Parent's ability to consummate the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicesMerger; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;and
(d) Parent shall use reasonable efforts take, or agree in writing or otherwise to preserve intact the business organization of Parent and the Parent Subsidiariestake, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall actions described in Sections 4.2 (ia) knowingly take through (c) above, or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take make any action that would jeopardize qualification of the Merger as a reorganization within the meaning representations or warranties of section 368(a) of the CodeParent or Acquisition Sub contained in this Agreement untrue or incorrect in any material respect or prevent Parent or Acquisition Sub from performing, or cause Parent or Acquisition Sub not to perform, its covenants hereunder.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated in accordance with Section 7.1, except (A) as may be required by Law, (B) as may be agreed in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (C) as otherwise may be expressly contemplated by or permitted pursuant to this Agreement or (D) as set forth in Section 5.2 of the Parent Disclosure Letter:
, (a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(bx) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend conduct its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than business in the ordinary course of business and in a manner consistent with past practices; practice and, to the extent consistent therewith, use reasonable best efforts to preserve its assets and business organization and maintain its existing relationships with material customers, suppliers, distributors, regulators and business partners, and (iiiy) assumeParent shall not, guaranteedirectly or indirectly:
(a) amend the Parent Organizational Documents in a manner that would be adverse to the Company or its stockholders or would, endorse or otherwise become liable would reasonably be expected to, have the effect of delaying or responsible preventing the consummation of the Merger or the other transactions contemplated by this Agreement;
(whether directly, contingently or otherwiseb) for increase the obligations size of any other person other than a the Parent Subsidiary Board;
(c) except with respect to quarterly cash dividends paid in the ordinary course of business and course, consistent with past practices; practice, subject to increase by no more than twenty-five percent (25%) on a quarterly basis, declare, set aside, authorize, make or (iv) enter into pay any contractdividend or other distribution, agreementpayable in cash, commitment stock, property or arrangement otherwise, with respect to any of the foregoingits capital stock or other equity interests;
(d) Parent shall use reasonable efforts to preserve intact the business organization adopt a plan of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andcomplete or partial liquidation or dissolution;
(e) neither adjust, split, combine, subdivide or reclassify Parent’s capital stock; or
(f) issue or sell any shares of Parent nor Common Stock representing more than five percent (5%) of the issued and outstanding shares of Parent Common Stock as of the date of this Agreement; provided, however, that Parent may issue or sell shares of Parent Common Stock pursuant to Parent Equity Awards, the Parent 2015 Long-Term Incentives Plan, the Parent Employee Stock Purchase Plan and any other Parent Benefit Plan; or
(g) enter into any agreement to do, or adopt any resolutions in support of, any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From the date Agreement Date until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to the Effective TimeArticle X, unless Company shall otherwise agree except as set forth in writing, or as otherwise contemplated by this Agreement or Section 6.2 of the Parent Disclosure Letter:, as otherwise specifically contemplated by this Agreement, or as required by applicable Law, by a Governmental Authority of competent jurisdiction or by the rules or requirements of the TSX, Parent agrees that it shall conduct its business and the business of its Subsidiaries in all material respects in the ordinary course consistent with past practice, shall use its commercially reasonable efforts to preserve intact its business organizations and goodwill, including, keeping available the services of its officers, employees and consultants and maintaining reasonably satisfactory relationships with vendors, customers and others having business relationships with it, subject to the terms of this Agreement, and, by way of amplification and not limitation, shall not, and shall cause its Subsidiaries not to (without the prior written consent of Target, which consent shall not be unreasonably withheld):
(a) the respective businesses amend or propose to amend its articles of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent incorporation or any Parent Subsidiarybylaws or other organizational documents;
(b) Parent shall not (i) sell declare, set aside or pledge pay any dividend or agree other distribution with respect to sell or pledge any stock owned by it in any shares of the Parent Subsidiaries; its capital stock, (ii) amend repurchase, redeem or otherwise acquire any outstanding shares of its Articles of Incorporation capital stock or By-Laws; other securities or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesstock;
(c) neither Parent nor issue, sell, pledge, dispose of or encumber any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class securities (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares other than in the ordinary course of Parent Common Stock reserved for issuance business, upon the exercise of Parent Employee Stock OptionsOptions outstanding on the Agreement Date and disclosed in the Parent Disclosure Letter), or enter into any amendment of any term of any outstanding security, or as otherwise set out in Section 6.2 of the Parent Disclosure Letter;
(iid) incur, (i) incur or assume or prepay any indebtedness or any other material liabilities other than Indebtedness except Indebtedness incurred in the ordinary course of business and consistent with past practices; practice and in no event exceeding $1,500,000 in the aggregate or as otherwise set out in the document titled “Energy Fuels Proposed Business Plan and Budget 2015 Through 2017”, dated December 10, 2014, provided by Parent to Target (the “Parent Budget”), (ii) modify the terms of any Indebtedness, (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person Person (other than a Parent wholly owned Subsidiary of Parent), except in the ordinary course of business and consistent with past practices; practice and in no event exceeding $200,000 in the aggregate or as otherwise set out in the Parent Budget, (iv) make any loans, advances or capital contributions to, or investments in, any other Person (other than to wholly owned Subsidiaries of Parent, or by such Subsidiaries to Parent and other than short-term investments of cash in the ordinary course of business);
(e) subject any assets to, incur, create or assume, any Lien other than a Permitted Lien or any Liability as a guarantor or surety with respect to the obligations of any Person other than in the ordinary course of business consistent with past practice;
(f) (i) engage in any transaction in connection with which Parent or any of its Subsidiaries could be subject (directly or indirectly) to either a civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or a Tax imposed pursuant to Chapter 43 of Subtitle D of the Code, (ii) terminate any of the Parent Benefit Plan that could result in Liability to any Person, (iii) take any action that could adversely affect a Parent Benefit Plan’s compliance with the applicable requirements of ERISA, (iv) fail to make full payment when due of all amounts which, under the provisions of any Parent Benefit Plans, any agreement relating thereto or applicable Law, such party is required to pay as contributions thereto, or (v) fail to file, on a timely basis, all reports and forms required by federal regulations with respect to any Parent Benefit Plans or (vii) adopt or amend, or accelerate the payment or vesting of benefits under, any Target Benefit Plan;
(g) acquire, by merging or consolidating with, or by purchasing an equity interest in or the assets of, or in any other manner, any business or Person, exceeding $1,000,000;
(h) sell, lease, license or otherwise surrender, relinquish or dispose of any assets with an aggregate fair market value exceeding $1,000,000;
(i) transfer, sell, pledge, encumber or dispose of any capital stock or other equity interest in any Subsidiary other than in connection with Section 6.2(h);
(j) incur or commit to any capital expenditures, or become bound or obligated to participate in any operation, or consent to participate in any operation, other than in the ordinary course or as contemplated in current mine plans or as otherwise previously disclosed to Target;
(k) make any change to any material Tax method of accounting, make or change any material Tax election, authorize any indemnities for Taxes, extend any period for assessment of any Tax, file any request for ruling or determination, amend any material Tax Return (including by way of a claim for refund) or settle or compromise any material Tax liability, except where such action would not have a material effect on the Tax position of Parent and its Subsidiaries taken as a whole;
(i) except as set forth in clause (ii), pay, discharge or satisfy any material account payable or other material Liability beyond or in advance of its due date or the date when such account payable or Liability would have been paid in the ordinary course of business and consistent with past practice or (ii) compromise, settle, grant any waiver or release relating to any action, suit or proceeding, other than settlements or compromises where the amount paid or to be paid does not exceed $1,000,000 in the aggregate for all claims;
(m) enter into any contract, agreement, understanding or commitment that materially restrains, limits or impedes its ability, or would materially limit the ability of the Surviving Entity or any affiliate of the Surviving Entity after the Effective Time, to compete in or conduct any line of business or compete with any Person or in any geographic area or during any period of time, provided that nothing contained herein shall restrict Parent from entering into confidentiality agreements and property acquisition agreements which contain “area of interest” restrictions typical in the mining industry in connection with transactions permitted under Section 6.2(g);
(n) enter into any joint venture, partnership or other similar arrangement or materially amend or modify the terms of (or waive any material rights under) any existing joint venture, partnership or other similar arrangement in circumstances where the sum of (i) the assets of Parent involved, and (ii) the amount of the obligations and liabilities assumed or agreed to by Parent, is in excess of $5,000,000;
(o) make any change in any method of accounting or accounting practice or procedure except for any such change required by IFRS;
(p) enter into any agreement or transaction that would be required to be disclosed in the Parent Disclosure Letter pursuant to Section 5.26 regarding affiliate transactions if such agreement or transaction had been entered into prior to the Agreement Date;
(q) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any of its Affiliates, including any transactions, agreements, arrangements or understandings with any Affiliate or other Person covered under Item 404 of Regulation S-K under the Securities Act, that would be required to be disclosed under Item 404;
(r) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the WARN Act, affecting in whole or in part any site of employment, facility, operating unit or employee of Parent;
(s) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(t) (i) enter into, amend, modify, or terminate, or make any commitment in respect of, any contract or agreement that is material to the business, properties, assets, financial condition or results of operations of Parent, including, without limitation, any Material Contract, except in the ordinary course of business consistent with past practice and provided that, for the purposes of this subparagraph (i), a commitment will not be considered material unless the amount of the obligations or liabilities assumed or agreed to by Parent under such commitment are in excess of $5,000,000, or (ii) enter into any contract or agreement that limits or otherwise restrains Parent from competing in or conducting any line of business or engaging in business in any significant geographic area;
(u) cause or allow any material insurance policies (or substantial equivalents thereof) to lapse or terminate;
(v) pay, discharge, settle or satisfy any lawsuit or threat of any lawsuit or proceeding or other investigation against Parent or relating to its business, properties or assets, other than (i) in the ordinary course of business for amounts not in excess of $500,000 in any case, and not to exceed $1,000,000 in the aggregate, (ii) pursuant to existing contractual obligations, or (iii) worker’s compensation claims in the ordinary course of business;
(w) except as may be required by applicable Law, settle any material audit with respect to Taxes or file any amended Tax return that would materially alter the Tax obligation of Parent or its Subsidiaries;
(x) take any action that would result in the breach of any representation and warranty of Parent hereunder (except for representations and warranties made as of a specific date) such that Target would have the right to terminate this Agreement; or (y) agree to commit to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent agrees that, between the date of this Agreement to and the Effective Time, except as contemplated by any other provision of this Agreement, unless the Company shall otherwise agree consent in writing, writing (such consent not to be unreasonably withheld or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:delayed):
(a) the respective businesses business of the Parent and the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall not take any action except in the ordinary and usual course of business and in a manner consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;practice; and
(b) Parent shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of Parent and the Parent Subsidiaries and to preserve the current relationships of Parent and the Parent Subsidiaries with customers, suppliers and other persons with which Parent or any Parent Subsidiary has significant business relations. By way of amplification and not (i) sell limitation, except as contemplated by this Agreement, neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or pledge indirectly, do, or agree propose to sell or pledge any stock owned by it in do, any of the Parent Subsidiaries; following without the prior written consent of the Company (iisuch consent not to be unreasonably withheld):
(a) amend or otherwise change its Articles of Incorporation or By-Laws; Laws or equivalent organizational documents;
(iiib) splitissue, combine or reclassify any shares of its outstanding capital stock or declaresell, set aside or pay any dividend or other distribution payable in cashpledge, stock or propertydispose of. grant, encumber, or redeem authorize the issuance, sale, pledge, disposition, grant or otherwise acquire encumbrance of (i) any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, its capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent or any class Parent Subsidiary (whether through except for the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuable pursuant to the Parent Stock Options outstanding on the date of this Agreement or the issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; practice, or (iiiii) assumeany Material assets of Parent or any Parent Subsidiary, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary except in the ordinary course of business and in a manner consistent with past practices; practice;
(c) declare, set aside, make or (iv) enter into pay any contractdividend or other distribution, agreementpayable in cash, commitment stock, property or arrangement otherwise, with respect to any of the foregoingits capital stock;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiariesreclassify, to keep available the services combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andcapital stock;
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take acquire (including, without limitation, by merger, consolidation, or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling stock or assets) any interest in any corporation, partnership. other business organization or any division thereof or any assets, other than acquisitions of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification assets in the ordinary course of the Merger as a reorganization within the meaning of section 368(a) of the Code.business consistent with past practice;
Appears in 1 contract
Samples: Merger Agreement (Deep Down, Inc.)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent covenants and agrees that, except as set forth in Section 4.2 of the Parent Disclosure Schedule or unless the Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or Parent shall conduct its business, and cause the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent its Subsidiaries shall to be conducted only in the ordinary and usual course of business and consistent with past practicesconducted, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicespractice, other than actions taken by Parent or Merger Sub or Parent’s other Subsidiaries in contemplation of the Merger, and shall not directly or indirectly do, or cause or allow any of Parent’s Subsidiaries to do or propose to do, or propose to do, any of the following without the prior written consent of the Company:
(a) amend or otherwise change Parent’s Certificate of Incorporation or Bylaws;
(b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) in Parent, Merger Sub or any of their Affiliates, except for the issuance of shares of Parent Common Stock issuable upon the exercise of the stock options listed in Section 3.2 of the Parent Disclosure Schedule;
(c) sell, transfer, lease to others or otherwise dispose of or subject to any encumbrance any material assets or properties owned by it or purchase, lease from others or otherwise acquire any material assets or properties (except for (i) purchases or sales of assets in the ordinary course of business and in a manner consistent with past practice, (ii) dispositions of obsolete or worthless assets, and (iii) purchases or sales of immaterial assets not in excess of $20,000);
(d) (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, or permit any Person to purchase, repurchase, redeem or otherwise acquire, any of its securities, including shares of Parent Common Stock or any option, warrant or right, directly or indirectly, to acquire shares of Parent Common Stock;
(i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (ii) incur any indebtedness for borrowed money, except for borrowings and reborrowing under its existing credit facilities or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the ordinary course of business consistent with past practice; (iii) assumeauthorize any capital expenditures or purchases of fixed assets which are, guaranteein the aggregate, endorse in excess of the amount set forth in Section 4.2 of the Parent Disclosure Schedule for Parent and its Subsidiaries taken as a whole; or otherwise become liable (iv) enter into or responsible amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 4.2(e);
(whether directlyf) make any change in the rate of compensation, contingently commission, bonus or other remuneration payable, or pay or agree or promise to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to any director, officer, employee, salesman or agent of Parent or its Subsidiaries except in the ordinary course of business consistent with prior practice and pursuant to or in accordance with plans disclosed in Section 3.14(a) for of Parent Disclosure Schedule that were in effect as of the obligations date of this Agreement or make any increase in or commitment to increase any employee benefits, adopt or make any commitment to adopt any additional employee benefit plan or make any contribution, other than regularly scheduled contributions, to any Employee Benefit Plan;
(g) take any action to change accounting practices, policies or procedures (including procedures with respect to revenue recognition, payments of accounts payable or collection of accounts receivable);
(h) make any material tax election inconsistent with past practice or settle or compromise any material federal, state, local or foreign Tax liability or agree to an extension of a statute of limitations, except to the extent the amount of any other person such settlement has been reserved for in Parent Financial Statements;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than a Parent Subsidiary the payment, discharge or satisfaction when due, in the ordinary course of business and consistent with past practices; practice of liabilities reflected or reserved against in Parent Financial Statements or incurred after the Parent Balance Sheet Date, in the ordinary course of business and consistent with past practice;
(ivj) enter into any contracttransaction, agreementcontract or commitment other than in the ordinary course of business; or
(k) take, commitment or arrangement with respect agree in writing or otherwise to take, any of the foregoing;
actions described in Sections 4.1(a) through (dj) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiariesabove, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take make any action that would jeopardize qualification of the representations or warranties of Parent contained in this Agreement untrue or incorrect or prevent Parent and Merger as a reorganization within the meaning of section 368(a) of the CodeSub from performing or cause Parent and Merger Sub not to perform its covenants herein.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent covenants and agrees that, unless the Company shall otherwise agree in writing, Parent shall conduct its business, and cause the businesses of its subsidiaries to be conducted, in the ordinary course, other than actions taken by Parent or its subsidiaries in contemplation of the Merger, and Parent shall use all reasonable efforts to preserve substantially intact the business organization of Parent and its subsidiaries, to keep available all services of the present officers, employees and consultants of Parent and its subsidiaries and to preserve the present relationships of the Parent and its subsidiaries with customers, suppliers and other persons with which Parent or any of its subsidiaries has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither Parent nor any of its subsidiaries shall, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Parent Disclosure LetterEffective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Company:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside aside, make or pay any dividend or other distribution payable (whether in cash, stock or property, property or redeem or otherwise acquire any shares combination thereof) in respect of any of its capital stock stock, other than regular quarterly cash dividends of $0.18 per share consistent with past practices and except that a wholly owned subsidiary of Parent may declare and pay a dividend to its parent;
(b) take or shares of the capital stock of agree in writing or otherwise to take any action which would make any of the representations or warranties of Parent Subsidiaries;contained in this Agreement untrue or incorrect or prevent Parent from performing or cause Parent not to perform its covenants hereunder; or
(c) neither amend or otherwise change the Certificate of Incorporation or By-Laws of Parent nor any of in a manner that would be materially adverse to the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares holders of Parent Common Stock reserved for issuance upon (it being understood that any such amendment made to implement a so-called "shareholder rights plan" as described in the exercise footnotes to the financial statements included in or incorporated by reference into the Annual Report of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) on Form 10-K for the obligations of any other person other than a Parent Subsidiary in fiscal year ended December 31, 1995 shall not be deemed to be materially adverse to the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization holders of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the CodeCommon Stock).
Appears in 1 contract
Samples: Merger Agreement (KKR Associates)
Conduct of Business by Parent Pending the Merger. From the date Except as expressly permitted by clauses (i) through (xii) of this Agreement Section 4.1(b), during the Pre-Closing Period, Parent and its Subsidiaries shall use commercially reasonable efforts to, in all material respects, carry on their business in the ordinary course of business as currently conducted and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers and others having business dealings with any of them to the end that their goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, unless Company shall otherwise agree in writing, or and except as otherwise expressly contemplated by this Agreement or as set forth in the Parent Disclosure Letter:Schedule (with specific reference to the applicable subsection below), Parent and its Subsidiaries shall not without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed):
(aA) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in the ordinary and usual course of business and consistent with past practicesrespect of, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
Capital Stock, or otherwise make any payments to its stockholders in their capacity as such, (b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iiiB) split, combine or reclassify any Parent Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock Parent Capital Stock or declare(C) purchase, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock Parent Capital Stock or shares of the any capital stock of any of the Parent Subsidiariesits Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(cii) neither except as related to the exercise of any existing stock options set forth in Section 2.2(a) or the issuance of any additional stock options pursuant to the existing stock option plans of Parent, issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of Parent nor Capital Stock, any other voting securities or equity equivalents or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalents or convertible securities;
(iii) except to the extent required by the DGCL or other Applicable Law, amend the Parent Certificate of Incorporation or Bylaws;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Parent Subsidiaries shall assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof;
(iv) authorize for issuanceexcept as set forth on Schedule 4.1(b), issue sell, lease or sell any additional shares otherwise dispose of, or rights of any kind agree to acquire any shares sell, lease or otherwise dispose of, any of its capital stock of any class (whether through the issuance or granting of optionsmaterial assets, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingpractice;
(dvi) Parent shall use reasonable efforts to preserve intact alter (through merger, liquidation, reorganization, or restructuring) the business organization corporate structure or ownership of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent SubsidiariesParent; and
(e) neither Parent nor any of the Parent Subsidiaries shall (ivii) knowingly take violate or allow knowingly fail to be taken perform any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; obligation or (ii) knowingly take duty imposed upon it by any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.applicable material federal, state or local law, rule, regulation, guideline or ordinance;
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From the date of this Agreement to and until the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by earlier of the Closing Date and the date on which this Agreement or is terminated pursuant to Section 9.01, except as set forth in Section 6.02 of the Parent Disclosure Letter:
, as contemplated or required by this Agreement, the other Transaction Documents or applicable Law, and except as TDCC shall otherwise consent to in writing (such consent not to be unreasonably withheld, delayed or conditioned), (a) the respective Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to (i) conduct its and their businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary course in all material respects; and usual course (ii) preserve intact in all material respects the business organization of business their businesses; and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not, and shall cause its Subsidiaries not to:
(i) sell or (A) issue, sell, pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiariesdispose of; (iiB) amend its Articles of Incorporation grant an Encumbrance on or By-Lawspermit an Encumbrance to exist on; or (iiiC) splitauthorize the issuance, combine sale, pledge or reclassify disposition of, or granting or placing of an Encumbrance on, any shares of its outstanding any class of capital stock or declarestock, set aside or pay any dividend or other distribution payable in cashownership interests, stock of Parent or propertyany of its Subsidiaries, or redeem any options, warrants, convertible securities or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest) of Parent or any of its Subsidiaries, other than, as applicable, (1) any such transaction by a directly or indirectly wholly-owned Subsidiary of Parent which remains a directly or indirectly wholly-owned Subsidiary of Parent after consummation of such transaction; (2) upon the exercise or settlement of, or as otherwise required by, any Parent Stock Awards granted pursuant to the Parent Stock Plans outstanding on the date of this Agreement and in accordance with their terms in effect on the date of this Agreement or thereafter granted in the ordinary course of business; (3) upon the acquisition of Parent Stock Equivalents by participants in the Parent Deferral Plans in accordance with their terms; (4) pursuant to the Parent 401(k) Plan in accordance with its terms; or (5) pursuant to the Parent Share Issuance;
(ii) (A) sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the businesses of Parent and its Subsidiaries, except (1) in the ordinary course of business and consistent with past practice; (2) dispositions of obsolete or worn-out assets that are no longer used or useful in the operation or conduct of the business of Parent or its Subsidiaries; (3) Encumbrances that are Permitted Encumbrances; and (4) Encumbrances securing indebtedness that would not be prohibited by Section 6.02(b)(xii);
(iii) amend or restate the certificate of incorporation or bylaws (or similar organizational documents) of Parent or any of its Subsidiaries, except for the Parent Charter Amendment;
(iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares (A) the declaration and payment of regular quarterly cash dividends not in excess of $0.20 per share of Parent Common Stock reserved for issuance upon the exercise Stock; and (B) dividends or distributions by any directly or indirectly wholly-owned Subsidiary of Parent Employee Stock OptionsParent;
(v) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(iivi) incur(A) acquire or dispose of (including by merger, assume consolidation or prepay any indebtedness acquisition of stock or assets or any other material liabilities business combination) any corporation, partnership, other business organization or any division thereof; or (B) make any loans or advances or capital contribution to, or investment in, any Person other than Parent or a Subsidiary of Parent;
(vii) (A) grant any increase in the base salaries, target bonus opportunity, or other benefits payable by Parent or its Subsidiaries to any of its employees; (B) adopt, terminate, accelerate the timing of payments or vesting under, or otherwise materially amend or supplement, any Parent Plans; or (C) enter into or amend any employment, consulting, change in control, retention, severance or termination agreement with any Parent Employee, in each case, other than (1) as required by Law; (2) as required by any Parent Plan or Parent Employee Representative Agreement, each as in effect on the date hereof; (3) as permitted by Section 6.02(b)(i); (4) in the ordinary course of business consistent with the past practices of Parent or its Subsidiaries (including in the context of new hires or promotions based on job performance or workplace requirements); or (5) to the extent undertaken in connection with the implementation of a program that affects all similarly situated employees of Parent and/or its Subsidiaries;
(viii) terminate, discontinue, close or dispose of any plant, facility or other business operation, or lay off any employees (other than layoffs of less than 50 employees at any individual location in any six (6) month period in the ordinary course of business consistent with past practice);
(ix) change any method of accounting or accounting practice or policy used by Parent as it relates to the businesses of Parent and its Subsidiaries, other than such changes as are required by GAAP or a Governmental Authority;
(x) other than in the ordinary course of business and consistent with past practicespractice, (A) make any change (or file any such change) in any method of Tax accounting; (iiiB) assumemake, guaranteechange or rescind any Tax election; (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes; (D) file any amended Tax Return or claim for refund; (E) enter into any closing agreement relating to Taxes; or (F) waive or extend the statute of limitations in respect of Taxes; in each case, endorse to the extent that doing so could reasonably be expected to result in a material incremental cost to Parent or otherwise become liable any of its Subsidiaries;
(xi) pay, discharge or responsible satisfy any claim, liability or obligation (whether directlyabsolute, contingently accrued, asserted or unasserted, contingent or otherwise) for the obligations of any other person ), other than a Parent Subsidiary the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practicespractice, of liabilities reflected or reserved against in the financial statements set forth in the Parent SEC Documents or incurred in the ordinary course of business and consistent with past practice;
(xii) incur, guarantee or assume or otherwise become responsible for any indebtedness for borrowed money other than (A) indebtedness incurred under Parent’s current credit facilities; (B) indebtedness solely between or among Parent and its Subsidiaries; (C) refinancing, replacements, extensions and renewals of existing indebtedness entered into in the ordinary course of business consistent with past practice; (D) indebtedness in an aggregate principal amount not to exceed $50 million incurred to finance acquisitions that would otherwise be permitted under this Section 6.02(b); (E) indebtedness incurred in connection with the transactions contemplated hereby; and (F) letters of credit or similar arrangements entered into in the ordinary course of business consistent with past practice;
(xiii) commence or settle any Action other than in the ordinary course of business and consistent with past practice;
(xiv) other than in the ordinary course of business and consistent with past practice, enter into, extend, materially amend, cancel or terminate any Environmental Permit, order or decree under Environmental Law, or any Parent Material Contract;
(xv) (A) abandon, disclaim, sell, assign or grant any security interest in, to or under any material Parent Intellectual Property, including failing to perform or cause to be performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in any material Parent Intellectual Property; or (ivB) grant to any third party any license, or enter into any contractcovenant not to sue, agreementwith xxspect to any material Parent Intellectual Property, commitment or arrangement except in the ordinary course of business and consistent with past practice;
(xvi) fail to exercise any rights of renewal with respect to any material Parent Leased Real Property that by its terms would otherwise expire unless Parent (or, if the lessee is a Subsidiary of Parent, such Subsidiary) determines in good faith that a renewal would not be in the best interests of Parent;
(xvii) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(xviii) fail to maintain (with insurance companies substantially as financially responsible as its existing insurers) insurance in at least such amounts and against at least such risks and losses as are consistent in all material respects with the past practice of the businesses of Parent and its Subsidiaries; or
(xix) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent and Acquisition Sub covenant and agree with the Company that between the date hereof and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, Parent and Acquisition Sub:
(a) shall not amend or otherwise change any of the Parent Organizational Documents, except as may be agreed in writing by the Company and except for any amendments or changes as could not reasonably be expected to prevent, delay or impair the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement, including the Financing;
(b) subject to the other terms and conditions of this Agreement Agreement, shall take or cause to be taken all action necessary to consummate the Effective Timetransactions contemplated by this Agreement, unless Company including taking such actions as are required pursuant to Section 6.11 such that, as of the Closing, Parent and Acquisition Sub will satisfy all of the conditions contained in the Financing Commitments necessary to secure the Financing;
(c) shall otherwise not, and shall not permit any of their Affiliates to, acquire or agree in writingto acquire by merging or consolidating with, or as by purchasing all or a substantial portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business competes in any line of business of the Company or its Subsidiaries and agreeing to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, order, declaration or approval of any Governmental Authority (including under any Antitrust Laws) necessary to consummate the transactions contemplated by this Agreement or the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent expiration or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock termination of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Optionsapplicable waiting period, (ii) incurincrease the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse increase the risk of not being able to remove any such Order on appeal or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment delay or arrangement with respect to any prevent the consummation of the foregoingtransactions contemplated by this Agreement;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employeesnot, and shall not permit any of their Affiliates to, take or agree to preserve take any action that would reasonably be expected to prevent or materially delay or impair the goodwill consummation of those having business relationships with it and the Parent Subsidiariestransactions contemplated hereby, including the Financing; and
(e) neither Parent nor shall not, and shall not permit any of their Affiliates to, prior to the Parent Subsidiaries shall (i) knowingly Termination Date, enter or agree to enter into any definitive agreement for the acquisition of any business or Person or take or allow agree to take any other action which, in either case, would reasonably be taken any action which would jeopardize expected to materially interfere with their ability to make available to the treatment Paying Agent immediately prior to the Effective Time funds sufficient for the satisfaction of all of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification ’s and Acquisition Sub’s obligations under this Agreement, including the payment of the Total Common Merger as Consideration and any amounts payable pursuant to Section 3.3, and the payment of all associated costs and Expenses (including any refinancing of Indebtedness of Parent or the Company required in connection therewith) or otherwise would be reasonably expected to result in a reorganization within the meaning of section 368(a) of the CodeParent Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Hardinge Inc)
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that, during the date of this Agreement to the Effective TimeInterim Period, unless Company shall otherwise agree in writing, except as expressly provided or as otherwise contemplated permitted by this Agreement or set forth in Section 5.2 of the Parent Disclosure Letter:
Schedule or unless the Company shall otherwise give its prior written consent (a) the respective businesses which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of Parent and the Parent its Subsidiaries shall be conducted only to, use commercially reasonable efforts to conduct its business in the ordinary and usual course of business and consistent with past practicesbusiness. Except as expressly provided or permitted by this Agreement or as set forth in Section 5.2 of the Parent Disclosure Schedule, during the Interim Period, Parent shall not, and there shall be no material changes in the conduct cause each of its Subsidiaries not to, directly or indirectly, do any of the operations following without the prior written consent of Parent or any Parent Subsidiary;
the Company (b) Parent which consent shall not be unreasonably withheld, conditioned or delayed):
(i) sell or pledge or agree amend Parent’s Certificate of Incorporation to sell or pledge any stock owned by it in change any of the rights or privileges of the Parent Subsidiaries; Common Stock;
(ii) amend its Articles Merger Sub’s Certificate of Incorporation or By-Laws; or Bylaws;
(iii) splitengage in any repurchase at a premium, combine recapitalization, restructuring or reclassify reorganization with respect to any shares of its outstanding Parent’s capital stock or stock;
(iv) declare, set aside or pay any extraordinary dividend or other extraordinary distribution payable (whether in cash, stock or other securities or property, or redeem any combination thereof) in respect of any of Parent’s capital stock;
(v) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee (other than guarantees of bank debt of the Company’s Subsidiaries entered into in the ordinary course of business) or endorse or otherwise as an accommodation become responsible for the obligations of any Person, or make any loans, advances or enter into any financial commitments or lease commitments, in any case in excess of One Million dollars ($1,000,000);
(vi) acquire any shares (by merger, consolidation, acquisition of its capital stock or shares assets or otherwise) a significant portion of the capital stock or other equity interests in, or assets of, any corporation, limited liability company, partnership, joint venture or other business organization or division thereof, or enter into any definitive agreement with respect thereto, unless such acquisition or the entering into of such definitive 44 agreement would not require any vote of Parent’s stockholders or require that any pro forma or other additional financial statements or information be added to the Parent SubsidiariesRegistration Statement;
(cvii) neither Parent nor sell, transfer, lease, license, sublicense, mortgage, pledge, encumber, grant or otherwise dispose of any material Company Intellectual Property Rights, other than in the ordinary course of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofParent’s business, or amend or modify in any material respect any existing material agreements with respect to any Company Intellectual Property Rights;
(viii) issue, sell, transfer, pledge, dispose of or encumber any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof capital stock, of the Company or any of its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise)Subsidiaries, except for unissued (1) a financing transaction or a series of related financing transactions resulting in net proceeds to the Parent of at least $30,000,000 in which the price per share or the exercise or conversion price per share in any such issuance is greater than $1.46, or (2) the issuance of shares of Parent Common Stock reserved for issuance upon pursuant to the exercise of Parent Employee Stock Options, Plans or pursuant to the Parent Warrants;
(iiix) incur, assume hire or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicesappoint a permanent Chief Executive Officer; or
(iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (ivx) enter into any contract, agreement, commitment agreement or arrangement with respect contract to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Oxigene Inc)
Conduct of Business by Parent Pending the Merger. From Parent and Acquisition Sub covenant and agree that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is validly terminated pursuant to Section 8.1, except (a) as may be required by Law, (b) as may be agreed to in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), or (c) as may be expressly required or permitted pursuant to this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to: (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, if such business competes in any line of business of the Company or its Subsidiaries and the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation, or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture, or other transaction), in each case of clause (i) and (ii), that would reasonably be expected to (A) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorization, consent, order, declaration or approval of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the Parent Disclosure Letter:
expiration or termination of any applicable waiting period, (aB) materially increase the respective businesses risk of Parent and any Governmental Authority entering an Order prohibiting the Parent Subsidiaries shall be conducted only consummation of the transactions contemplated by this Agreement, (C) materially increase the risk of not being able to remove any such Order on appeal or otherwise, or (D) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement, including by acquiring or agreeing to acquire all or a portion of the equity in the ordinary and usual course of entity using or having any rights in any business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares type and character of, or rights of any kind to acquire any shares ofthat competes with, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness all or any other material liabilities other than in part of the ordinary course of business and consistent with past practices; (iii) assumeCompany, guarantee, endorse or otherwise become liable entering into or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) agreeing to enter into any contractmaterial license, agreementjoint venture or other agreement or transaction; and except as otherwise permitted by the foregoing, commitment or arrangement with respect enter into any agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Kemet Corp)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, except to the extent contemplated by this Agreement and the Proxy Statement/Prospectus, and the transactions described herein and therein, and except as necessary to fulfill their obligations hereunder, including without limitation their obligations under Section 1.9, Parent and Merger Sub covenant and agree that, unless Company shall otherwise agree in writing, Parent (i) shall conduct its business and shall cause the businesses of its subsidiaries to be conducted only in, and Parent and its subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice, and (ii) shall use reasonable commercial efforts to preserve substantially intact the business organization of Parent and its subsidiaries, to keep available the services of the present officers, employees and consultants of Parent and its subsidiaries and to preserve the present relationships of Parent and its subsidiaries with customers, suppliers and other persons with which Parent or any of its subsidiaries has significant business relations. By way of amplification and not limitation, and except as otherwise contemplated by noted above, neither Parent nor any of its subsidiaries shall, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Parent Disclosure LetterEffective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of Company:
(a) amend or otherwise change the respective businesses Parent's Certificate of Parent and Incorporation or Bylaws, except as is contemplated by the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent SubsidiaryProxy Statement/Prospectus;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine combine, reclassify or reclassify amend the terms of any shares of its outstanding capital stock or stock;
(c) declare, set aside aside, make or pay any dividend or other distribution payable (whether in cash, stock or propertyproperty or any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary of Parent may declare and pay a dividend to its parent and except that Parent may declare and pay cash dividends of $0.63 per share per quarter consistent with past practice (or such greater amounts as are consistent with past patterns of dividend increases or are required to maintain REIT qualification) and shall declare the dividend set forth in Section 5.18;
(d) issue, sell, pledge, dispose of or encumber, or redeem authorize the issuance, sale, pledge, disposition or otherwise acquire encumbrance of, any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofother beneficial interest, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of, its of capital stock or other beneficial interests, or any other ownership interest (including, without limitation, any phantom interest) of Parent or any class (whether through the issuance of its subsidiaries or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise)affiliates, except for unissued the issuance of shares of Parent Common Stock reserved issuable pursuant to stock options under the Parent Stock Option Plans, which options are outstanding on the date hereof;
(e) amend the terms of, repurchase, redeem or otherwise acquire, or permit any subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its subsidiaries;
(f) accelerate, amend or change (or permit any acceleration, amendment or change of) the period of exercisability of any stock options, or authorize cash payments in exchange for issuance upon any Parent Stock Options;
(g) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof, other than acquisitions of real estate assets (i) set forth in in the exercise Parent Disclosure Letter or (ii) in the ordinary course of business and in amounts consistent with past acquisition activities, even if such transactions are structured as acquisitions of corporations, partnerships or other business organizations; PROVIDED that Parent shall not effect any acquisition or set of related acquisitions described in subparagraph (g)(ii) without the written consent of Company if the total value of the particular acquisition or the particular set of related acquisitions (measured by the sum of the purchase price paid and debt assumed by Parent) exceeds 10% of the value of Parent's total assets as of September 30, 1995;
(h) sell, pledge, dispose of or encumber any assets of Parent Employee Stock Optionsor any of its subsidiaries, except for (i) sales of real estate assets in the ordinary course of business which are disclosed in the Parent Disclosure Letter or which, in the aggregate, do not exceed $2,000,000, (ii) incursales of non-real estate assets in the ordinary course of business and in a manner consistent with past practice, assume and (iii) dispositions of obsolete or prepay worthless assets, in each case subject to the requirements of Section 5.9;
(i) enter into, amend or terminate (i) any indebtedness lease of real property requiring, in the aggregate, annual rental payments in excess of $100,000, or (ii) any other material liabilities contract or agreement other than in the ordinary course of business or as required by, or to comply with, the terms of this Agreement;
(j) except as set forth in the Parent Disclosure Letter, incur any indebtedness for borrowed money, or issue any debt securities, or assume, guarantee (other than guarantees of bank debt of Parent subsidiaries entered into in the ordinary course of business), endorse or otherwise as an accommodation become responsible for the obligations of any person, or make any loans or advances, in each case in an amount, individually or in the aggregate, in excess of $250,000;
(k) except as may be disclosed in the Parent Disclosure Letter, authorize any capital expenditures or purchase of fixed assets for Parent and its subsidiaries taken as a whole which are, in the aggregate, in excess of $250,000;
(l) except as may be required by law or as may be disclosed in the Parent Disclosure Letter, (i) increase the compensation payable or to become payable to its officers or employees, except in the ordinary course of business pursuant to normal, recurring compensation reviews and in amounts consistent with past practices, or (ii) grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer (except for officers who are terminated on an involuntary basis) or other employee of Parent or any of its subsidiaries, or (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees;
(m) take any action to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payment of accounts payable and collection of accounts receivable);
(n) make any material tax election inconsistent with past practices, or settle or compromise any material federal, state, local or foreign tax liability, or agree to an extension of a statute of limitations, except to the extent the amount of any such settlement has been reserved for on the most recent Parent Financial Statement;
(o) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practices; practice of liabilities (iiii) assume, guarantee, endorse reflected or otherwise become liable reserved against in the most recent Parent Financial Statement or responsible (whether directly, contingently or otherwiseii) for the obligations of any other person other than a Parent Subsidiary incurred in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingbusiness;
(dp) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company or the Company's status as a pooling REIT or the ability of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the each Merger to qualify as a reorganization within the meaning series of section 368(atax- free reorganizations under Section 368(a)(1) of the Code;
(q) take, or agree in writing or otherwise to take, any action which would cause a material breach of any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; or
(r) except as may be disclosed in the Parent Disclosure Letter, or with the reasonable approval of Company, no matters will be submitted to the shareholders of Parent or Merger Sub for a vote prior to the Closing other than the Merger.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent and Acquisition Sub covenant and agree that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated pursuant to Section 8.1, except as (a) may be required by Law, (b) may be consented to in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, conditioned or as otherwise delayed), (c) may be expressly required, contemplated by or permitted pursuant to this Agreement or (d) set forth in the corresponding sub-section of Section 6.10 of the Parent Disclosure Letter, Parent and Acquisition Sub shall not, and shall not permit any of their respective Subsidiaries to:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practicesamend, and there shall be no material changes in the conduct of the operations of Parent modify or otherwise change (A) any Parent SubsidiaryOrganizational Documents or (B) in any material respect, the comparable organizational or governing documents of any of its Subsidiaries);
(b) Parent shall not (i) sell adopt or pledge enter into a plan of complete or agree to sell partial liquidation or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesdissolution;
(c) neither split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other Equity Interests of Parent nor any or rights, other than repurchases of Parent Shares in connection with the exercise, vesting or settlement of Parent equity awards that (A) are outstanding as of the Parent Subsidiaries shall date hereof or (iB) authorize for issuancemay be granted after the date hereof in the ordinary course of business;
(d) issue, issue sell, pledge, dispose, transfer, encumber or sell grant any additional shares ofof its or its Subsidiaries’ capital stock or other Equity Interests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of, of its or its Subsidiaries’ capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise)Equity Interests, except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options(i) transactions among Parent, Acquisition Sub and their respective direct or indirect wholly owned Subsidiaries or among Parent’s or Acquisition Sub’s direct or indirect wholly owned Subsidiaries and (ii) transactions that would not be subject to a vote of Parent’s stockholders under the rules of any stock exchange, applicable Law or the Parent Organizational Documents (except for a stockholder vote pursuant to Nasdaq Rule 5635(c));
(e) authorize, declare, pay or make any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to Parent’s, Acquisition Sub’s or any of their respective Subsidiaries’ capital stock or other Equity Interests, other than (i) dividends paid by any wholly owned Subsidiary of Parent or Acquisition Sub to Parent or Acquisition Sub or any of their wholly owned Subsidiaries and (ii) dividends paid by a non-wholly owned Subsidiary of Parent or Acquisition Sub to Parent or Acquisition Sub or any of their respective Subsidiaries on a pro rata basis;
(f) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse guarantee or otherwise become liable for any indebtedness for borrowed money or responsible any guarantee of such indebtedness except any such incurrence, assumption, guarantee or other liability which would not reasonably be expected to prevent, materially delay or materially impair the ability of Parent and Acquisition Sub to consummate the transactions contemplated by this Agreement; or
(whether directlyg) commit to, contingently resolve or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that, between the date of this Agreement to and the Effective Time, unless Company shall otherwise agree except (i) as set forth in writingSection 6.02 of the Parent Disclosure Schedule, or (ii) as otherwise expressly contemplated by any other provision of this Agreement or (iii) with the Parent Disclosure Letter:
prior written consent of the Company (a) such consent not to be unreasonably withheld, conditioned or delayed), the respective businesses of Parent and the Parent its Subsidiaries shall be conducted only in the ordinary and usual course of business and in a manner consistent with past practicespractice and Parent and each of its Subsidiaries shall use their reasonable best efforts to (A) preserve substantially intact their existing assets, (B) preserve substantially intact their business organization, (C) keep available the service of Parent’s named executive officers, (D) maintain and there shall be no material changes in the conduct of the operations of preserve intact their current relationships with customers, suppliers, distributors, creditors and other Persons with which Parent or any Parent Subsidiary;of its Subsidiaries has significant business relations and (E) comply in all material respects with applicable Law.
(b) Parent shall By way of amplification and not (i) sell or pledge or agree to sell or pledge any stock owned by it limitation, except as set forth in any Section 6.02 of the Parent Subsidiaries; (ii) amend its Articles Disclosure Schedule, as expressly contemplated by any other provision of Incorporation this Agreement or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares with the prior written consent of the capital stock of any of the Parent Subsidiaries;
Company (c) such consent not to be unreasonably withheld, conditioned or delayed), neither Parent nor any of its Subsidiaries shall, between the Parent Subsidiaries shall date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following:
(i) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents;
(ii) issue, sell, pledge or dispose of, grant an Encumbrance on or permit an Encumbrance to exist on, or authorize for the issuance, issue sale, pledge or sell any additional shares disposition of, or granting or placing of an Encumbrance on, any shares of any class of capital stock, or other ownership interests, of Parent or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest of Parent or any of its capital stock of any class Subsidiaries (whether through except for (A) the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued (x) shares of Parent Common Stock reserved for issuable pursuant to employee stock options, performance share awards, restricted stock units or restricted stock awards outstanding on the date hereof or (y) employee stock options, performance share awards, restricted stock units or restricted stock awards in the ordinary course of business, in each case, pursuant to the terms of the applicable Parent Plans as in effect immediately prior to the date of this Agreement and (B) the issuance upon the exercise by a Subsidiary of Parent Employee Stock Optionsof its capital stock to Parent or another Subsidiary of Parent);
(iii) sell, pledge or dispose of, grant an Encumbrance on or permit an Encumbrance to exist on, or authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the Parent and its Subsidiaries, (iitaken as a whole) incurexcept (A) sales of inventory in the ordinary course of business, assume (B) pursuant to any contracts or prepay agreements in force on the date of this Agreement, as may be amended from time to time in accordance with the terms hereof, (C) such dispositions among the Parent and its Subsidiaries, or (D) in connection with the Financing;
(iv) declare, set aside, make or pay any indebtedness dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any of Parent’s direct or indirect wholly-owned Subsidiaries to Parent or any of its other wholly-owned Subsidiaries;
(v) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(vi) except as set forth in Section 6.02(b)(vi) of the Parent Disclosure Schedule, (A) acquire (including by merger, consolidation or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, which acquisition would be material to Parent, or any other material liabilities amount of assets or would be reasonably likely to materially adversely affect the ability of Parent and the Company to obtain those consents, approvals, non-disapprovals, orders and other authorizations of any Governmental Authority set forth on Section 8.01(d) of the Company Disclosure Schedule and/or Section 8.01(d) of the Parent Disclosure Schedule or materially delay obtaining such consents, approvals, non-disapprovals, orders or authorizations; (B) other than in connection with the Financing or otherwise in the ordinary course of business, incur additional Indebtedness in respect of borrowed money and the issuance of any debt securities in an amount more than $50,000,000 in excess of the aggregate Indebtedness of the Company and its Subsidiaries as of the date of this Agreement, (C) except as required by the terms of any Indebtedness outstanding as of the date hereof, and other than in the ordinary course of business and consistent with past practices; (iii) business, assume, guaranteeguarantee or endorse, endorse or otherwise become liable or responsible (whether directlyfor, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practicesPerson, or make any material loans or material advances or capital contribution to, or investment in, any Person; or (ivD) enter into or materially amend any contract, agreement, commitment or arrangement with respect to any matter set forth in clauses (A) through (C) of the foregoingthis Section 6.02(b)(vi);
(dvii) except as otherwise required by Law or a Parent shall use reasonable efforts Benefit Plan in existence as of the date of this Agreement, terminate or amend any Parent Plan if it would materially decrease the aggregate benefits provided to preserve intact Service Providers;
(viii) materially change its financial accounting policies or procedures in effect as of the business organization date hereof, other than as required or permitted by Law or GAAP;
(ix) (A) make any material change (or file any material change) in any material method of accounting for Tax purposes, (B) make, change or rescind any material Tax election; (C) settle or compromise any proceeding with respect to any material Tax claim or assessment relating to Parent and the Parent Subsidiaries, to keep available the services or any of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(eD) neither Parent nor file any material amended Tax Return or any material Tax Return in a manner inconsistent with past practice or claim for any material refund (or surrender any right to claim a material refund of Taxes); (E) enter into any material closing agreement relating to Taxes; or (F) waive or extend for a period of greater than twelve (12) months the statute of limitations in respect of the Parent Subsidiaries shall assessment or determination of material Taxes, except in each case, (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; if required by Law or (ii) knowingly take in the ordinary course of business consistent with past practice;
(x) fail to make in a timely manner any action filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(xi) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries, other than internal reorganizations in the ordinary course of business that would jeopardize qualification not have a material and adverse impact on the Company and its Subsidiaries or the transactions contemplated by this Agreement; or
(xii) agree, resolve, announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 1 contract
Samples: Merger Agreement (Metaldyne Performance Group Inc.)
Conduct of Business by Parent Pending the Merger. From (a) Except as described in Section 5.2(a) of the Parent Disclosure Schedule, or to the extent the Company shall otherwise consent in writing (which consent shall not be delayed or withheld without a reason), during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuanceconduct its business and that of its Subsidiaries, issue or sell taken as a whole, only in, and Parent shall not take any additional shares ofaction except in, or rights of and shall cause its Subsidiaries not to take any kind to acquire any shares ofaction except in, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, ordinary course and in a manner that is consistent with past practices and in compliance in all material respects with all applicable Laws and regulations; and (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use commercially reasonable efforts to preserve intact the business organization of Parent and the Parent its Subsidiaries, taken as a whole, to keep available the services of the current officers, employees and consultants of Parent and its and their present officers and key employeesSubsidiaries, and to preserve the goodwill present relationships of those having Parent and its Subsidiaries with customers, suppliers, distributors and other persons with which Parent or any of its Subsidiaries has significant business relationships with it and relations.
(b) Except as described in Section 5.2(b) of the Parent Subsidiaries; andDisclosure Schedule or to the extent the Company shall otherwise consent in writing (which consent shall not be delayed or withheld without a reason), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent shall not and shall not permit its Subsidiaries to:
(ei) neither amend or otherwise change the Parent nor Charter or Parent Bylaws or the charter or bylaws of any of the Subsidiaries;
(ii) issue, sell, transfer, pledge, redeem, accelerate rights under, dispose of or encumber, or authorize the issuance, sale, transfer, pledge, redemption, acceleration of rights under, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) in Parent;
(A) except in connection with the financing of the transactions contemplated by this Agreement, pledge, mortgage or encumber any assets, tangible or intangible, of Parent or any of its Subsidiaries shall or suffer to exist any Lien thereupon, or (iB) knowingly take sell, dispose, lease or allow license any assets, tangible or intangible, of Parent or any of its Subsidiaries, other than (A) sales of assets not to be taken exceed $20 million, in the aggregate, other than inventory in the ordinary course of business and (B) EXECUTION COPY sales, leases or licenses of Parent Proprietary Products in the ordinary course of business consistent with past practice;
(iv) (A) declare, set aside, make or pay any action which would jeopardize dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a direct or indirect wholly owned Subsidiary of Parent may declare and pay a dividend to its parent, (B) split, combine or reclassify any of its capital stock or issue or authorize or propose the treatment issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (C) purchase, repurchase, redeem or otherwise acquire, directly or indirectly, or permit any Subsidiary to purchase, repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries, or any option, warrant or right, to acquire any such securities, or propose to do any of the foregoing, other than pursuant to the exercise of Parent's repurchase rights with respect to unvested shares held by individuals terminating employment or service with Parent or any Subsidiary;
(A) acquire (by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any equity interest therein, other than Parent Permitted Acquisitions (as defined below) (it being understood and hereby agreed that prior to entering into any binding agreement, agreement in principle, letter of intent, memorandum of understanding or other similar agreement or document with respect thereto, Parent shall first consult with the Company as a pooling and its advisors in good faith regarding the timing, terms and conditions of interests for accounting purposessuch Parent Permitted Acquisition); or (iiB) knowingly take except to finance the transactions contemplated by this Agreement, incur any action that indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any person for borrowed money, or make any loans or advances or capital contributions to or investments in any other person other than in an amount not to exceed $200 million in the aggregate and as would jeopardize qualification not have a material adverse impact on the credit rating of Parent as of the Merger as a reorganization within date hereof, or (C) adopt or implement any new stockholder rights plan. For purposes of this Agreement, the meaning term "Parent Permitted Acquisition" shall mean any acquisition (by merger, consolidation or acquisition of section 368(astock or assets or otherwise) of any corporation, partnership or other business organization or division thereof or any equity interest therein that (w) involves or contemplates the Code.issuance or payment of consideration, and/or the assumption of indebtedness, with an aggregate fair market value (taken together with the fair market value of the total consideration issued or paid, and the indebtedness assumed, in connection with all other acquisitions theretofore effected by Parent after the date hereof and prior to the Effective Time) which does not exceed $200 million in the aggregate, (x) would not have a material adverse impact on the credit rating of Parent as of the date hereof, (y) would not reasonably be expected to delay the consummation of the transactions contemplated hereby in any material respect, and (z) does not require or contemplate the solicitation of consent or other approval of Parent's stockholders;
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated in accordance with Section 7.1, except (i) as may be required by Law, (ii) as may be agreed in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (iii) as otherwise may be expressly contemplated by or required pursuant to this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Letter, Parent shall not, directly or indirectly:
(a) amend the respective businesses Parent Organizational Documents in a manner that would be materially or disproportionately (relative to other holders of Parent and Common Stock) adverse to the Parent Subsidiaries shall Company’s stockholders or would, or would reasonably be conducted only in expected to, have the ordinary and usual course effect of business and consistent with past practices, and there shall be no material changes in delaying or preventing the conduct consummation of any of the operations of Parent Merger or any Parent Subsidiarythe other transactions contemplated by this Agreement;
(b) repurchase or otherwise acquire Parent shall not Common Stock, unless (i) sell in the ordinary course of business and in a manner consistent with past practice (it being understood that the foregoing shall not restrict Parent from repurchasing or pledge otherwise acquiring shares in connection with the acceptance of shares as payment for the exercise price of equity awards or agree to sell as payment for Taxes incurred in connection with the exercise, vesting and/or settlement of equity awards, or pledge any stock owned by it in any the forfeiture of the Parent Subsidiaries; equity awards) or (ii) amend its Articles of Incorporation or By-Laws; or not effected prior to the Closing;
(iiic) splitexcept with respect to quarterly cash dividends paid in the ordinary course consistent with past practice (subject to increase by no more than fifteen percent (15%) on a quarterly basis), combine or reclassify any shares of its outstanding capital stock or declare, set aside declare with a record date that is prior to the Closing or pay prior to the Closing any dividend or other distribution payable in cash, stock stock, property or propertyotherwise, or redeem or otherwise acquire any shares of with respect to its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingequity interests;
(d) Parent shall use reasonable efforts adopt a plan of complete or partial liquidation or dissolution with respect to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andParent;
(e) neither Parent nor adjust, split, combine, subdivide or reclassify Parent’s capital stock; or
(f) enter into any Contract to do, authorize or adopt any resolutions approving, or announce an intention to do, any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. (a) From the date of this Agreement to hereof until the Effective Time, unless the Company shall otherwise agree consent in writing, which consent shall not be unreasonably withheld, or except as listed on Schedule 7.2(a) of the Parent Disclosure Schedule or as otherwise contemplated expressly permitted by or provided for in this Agreement Agreement, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in the Ordinary Course of Business and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with Third Parties, to maintain each rating classification, published or indicative, assigned as of the date hereof by A. M. Best and Standard & Poor’s and to keep available the services of its current key employees, subject to the terms of this Agreement. In addition to and without limiting the generality of the foregoing, except as listed on Schedule 7.2(a) of the Parent Disclosure LetterSchedule or as otherwise expressly permitted by or provided for in this Agreement, from the date hereof until the Effective Time, without the prior written consent of the Company, which consent shall not be unreasonably withheld:
(ai) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practicesnot, and there shall be no not permit its Subsidiaries to, adopt or propose, any material changes change in its Organizational Documents except for such amendments required by Applicable Law or the conduct rules and regulations of the operations of Parent SEC or any Parent Subsidiarythe NYSE;
(bii) Parent shall not, and shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend permit its Articles of Incorporation or By-Laws; or (iii) splitSubsidiaries to, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any shareholder dividend or other distribution payable in cashexcept for (A) any dividend or distribution by a Parent Subsidiary to Parent or another Parent Subsidiary and (B) dividends required to be paid pursuant to the terms of the Parent Preferred Shares or trust preferred securities of Parent or any of its Subsidiaries outstanding on the date hereof;
(iii) Parent shall not, and shall not permit its Subsidiaries to, enter into any Business Combination Transaction with any Third Party, acquire capital stock or propertyassets of any Third Party, or redeem agree to do any of the preceding; provided, however, that a Parent Subsidiary may merge with another Parent Subsidiary;
(iv) Parent shall not, and shall not permit its Subsidiaries to, sell, lease, license, subject to an Encumbrance, or otherwise acquire surrender, relinquish or dispose of any assets or property of Parent or any Parent Subsidiary, other than (A) pursuant to existing written Contracts or commitments, including the posting of collateral to secure letters of credit required to be issued pursuant thereto (the terms of which have been disclosed to the Company prior to the date hereof) or (B) in an amount not in excess of $1.0 million in the aggregate;
(v) other than issuances of Parent Common Shares in respect of Parent Employee Options outstanding on the date hereof, Parent shall not, and shall not permit its Subsidiaries to: (A) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock or shares of the other securities (including any Parent Employee Options, warrants or any similar security exercisable for, or convertible into, such capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwisesimilar security), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.50
Appears in 1 contract
Samples: Merger Agreement (Argo Group International Holdings, Ltd.)
Conduct of Business by Parent Pending the Merger. From the date of this Agreement Parent covenants and agrees that, prior to the Effective Time, unless the Company shall otherwise agree consent (which consent shall not be unreasonably withheld) in writing, writing (including electronic mail) or except as otherwise contemplated by expressly permitted or required pursuant to this Agreement or the Parent Disclosure LetterAgreement:
(a) the respective The businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there the Parent and the Parent Subsidiaries shall be no material changes in use their reasonable best efforts to maintain their assets and preserve intact their respective business organizations, to maintain significant beneficial business relationships with suppliers, contractors, distributors, customers, licensors, licensees and others having business relationships with them and to keep available the conduct services of the operations of Parent or any Parent Subsidiary;their current key officers and employees.
(b) Without limiting the generality of Section 6.2(a), except (i) as set forth on Schedule 6.2(a) of the Parent Disclosure Letter, (ii) as contemplated by this Agreement, (iii) as required by applicable Law, and (iv) intercompany transactions between the Parent Subsidiaries or Parent and the Parent Subsidiaries, Parent shall not directly or indirectly do any of the following:
(i) sell or pledge acquire or agree to sell acquire by merging or pledge consolidating with any stock owned by it in any business or corporation, partnership or other business organization or division thereof, if such transaction would prevent or materially delay the consummation of the Parent Subsidiaries; transactions contemplated by this Agreement;
(ii) amend its Articles of Incorporation or By-Laws; or (iii) splitexcept for quarterly cash dividends consistent with the amount paid in past quarters, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or propertycapital stock, or redeem property or otherwise acquire with respect to any shares of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or shares of the capital stock of otherwise make any of the Parent Subsidiariespayments to stockholders in their capacity as such;
(ciii) neither Parent nor adopt or propose to adopt any amendments to its charter documents which would have a material adverse impact on the consummation of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or transactions contemplated by this Agreement;
(iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification reasonably be expected to result in (A) any inaccuracy of a representation or warranty herein that would allow for a termination of this Agreement, or (B) cause any of the conditions precedent to the transactions contemplated by this Agreement to fail to be satisfied;
(v) take any action, cause any action to be taken, knowingly fail to take any action or knowingly fail to cause any action to be taken, which action or failure to act would prevent or impede, or would be reasonably likely to prevent or impede, the Merger from qualifying as a reorganization within the meaning of section Section 368(a) of the Code;
(vi) adopt a plan of complete or partial liquidation or dissolution of Parent or any of its material Subsidiaries; or
(vii) take or agree in writing to take any of the actions precluded by Section 6.2(b).
Appears in 1 contract
Samples: Merger Agreement (Baker Hughes Inc)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that during the date Interim Period, except (a) as may be required by Law, (b) as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (c) as may be expressly contemplated or permitted pursuant to this Agreement, (d) as set forth in Section 6.2 of this Agreement to the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure LetterLetter or (e) as reasonably required to comply with, establish or implement COVID-19 Measures: (x) Parent shall, and shall cause its Subsidiaries to, conduct the business of Parent and its Subsidiaries, as applicable, in the ordinary course of business and in a manner consistent with past practice in all material respects and use reasonable best efforts to preserve intact its business organization, maintain in effect all material licenses and permits required to carry on its business, maintain in effect any exemptive orders or exemptive relief which it has received from the SEC and which are currently in effect and preserve its material business relationships (provided that (1) no action by Parent or its Subsidiaries (including Acquisition Sub) with respect to any of the matters specifically addressed by any other provisions of this Section 6.2 will be deemed a breach of this clause (x), unless such action would constitute a breach of one or more of such other provisions, (2) the failure by Parent or any of its Subsidiaries to take any action prohibited by clauses (a) through (j) below will not be deemed to be a breach of this clause (x), and (3) acquisitions and dispositions of investments in Parent Portfolio Companies in accordance with Parent’s investment objectives, policies, and restrictions in effect as of the date hereof will not be deemed to be a breach of this clause (x)); and (y) Parent shall not, and shall not permit any of its Subsidiaries to:
(a) amend or otherwise change, in any material respect, the respective businesses organizational documents of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course (or such equivalent organizational or governing documents of business and consistent with past practices, and there shall be no material changes in the conduct any of the operations of Parent or any Parent Subsidiaryits Subsidiaries);
(b) except for transactions solely among Parent shall not (i) sell or pledge or agree to sell or pledge any stock and its wholly-owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) , split, combine combine, reclassify, redeem, repurchase or reclassify otherwise acquire or amend the terms of any shares of its outstanding capital stock or declare, set aside other equity interests or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesrights;
(c) neither except for transactions solely among Parent nor and its wholly-owned Subsidiaries, issue, sell, pledge, dispose, encumber or grant any of the Parent Subsidiaries shall (i) authorize for issuanceshares of its or its Subsidiaries’ capital stock, issue (ii) options, warrants, convertible securities or sell any additional shares of, or other rights of any kind to acquire any shares of, of its or its Subsidiaries’ capital stock or (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries;
(d) (i) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to Parent’s or any of its Subsidiaries’ capital stock or other equity interests, other than (A) dividends and distributions paid by any wholly-owned Subsidiary of Parent to Parent or any of its wholly-owned Subsidiaries, (B) regular quarterly cash distributions payable by Parent on a quarterly basis consistent with past practices and Parent’s investment objectives and policies as publicly disclosed or (C) the authorization and payment of any class dividend or distribution necessary for Parent to maintain its qualification as a RIC, as reasonably determined by Parent; or (whether through the issuance ii) purchase, redeem or granting otherwise acquire share of optionscapital stock or other equity interests of Parent or its Subsidiaries (other than wholly-owned Subsidiaries) or any option, warrants, commitments, subscriptions, or rights to purchase acquire any such shares or otherwiseother equity interests.
(e) directly or indirectly acquire (including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation, business combination among Parent and its wholly-owned Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, in each case that are material to Parent and its Subsidiaries, taken as a whole, and except for unissued shares acquisitions of Parent Common Stock reserved for issuance upon Portfolio Company investments in accordance with Parent’s investment objectives, policies and restrictions;
(f) amend, enter into or terminate any Parent Material Contract other than (i) in the exercise ordinary course of business consistent with past practice in all material respects and (ii) which would not have a Parent Employee Stock OptionsMaterial Adverse Effect;
(g) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as otherwise required by Applicable Law;
(h) (i) make or change any material Tax election, (ii) incur, assume or prepay change any indebtedness or any other material liabilities method of Tax accounting other than in the ordinary course of business and consistent with past practices; business, or (iii) assume, guarantee, endorse agree to any extension or otherwise become liable or responsible waiver of the statute of limitations with respect to a material amount of Tax;
(whether directly, contingently or otherwisei) for the obligations enter into a new line of any other person other than a Parent Subsidiary business outside of Parent’s investment objective as described in the ordinary course of business and consistent with past practicesParent SEC Documents (provided, that the foregoing shall not apply in any way to any Parent Portfolio Company); or or
(ivj) enter into any contract, agreement, commitment or arrangement with respect agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Portman Ridge Finance Corp)
Conduct of Business by Parent Pending the Merger. From the date Agreement Date until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to the Effective TimeArticle X, unless Company shall otherwise agree except as set forth in writing, or as otherwise contemplated by this Agreement or Section 6.2 of the Parent Disclosure Letter:, as otherwise specifically contemplated by this Agreement, or as required by applicable Law, by a Governmental Authority of competent jurisdiction or by the rules or requirements of the TSX, Parent agrees that it shall conduct its business and the business of its Subsidiaries in all material respects in the ordinary course consistent with past practice, shall use its commercially reasonable efforts to preserve intact its business organizations and goodwill, including, keeping available the services of its officers, employees and consultants and maintaining reasonably satisfactory relationships with vendors, customers and others having business relationships with it, subject to the terms of this Agreement, and, by way of amplification and not limitation, shall not, and shall cause its Subsidiaries not to (without the prior written consent of Target, which consent shall not be unreasonably withheld):
(a) the respective businesses amend or propose to amend its articles of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent incorporation or any Parent Subsidiarybylaws or other organizational documents;
(b) Parent shall not (i) sell declare, set aside or pledge pay any dividend or agree other distribution with respect to sell or pledge any stock owned by it in any shares of the Parent Subsidiaries; its capital stock, (ii) amend repurchase, redeem or otherwise acquire any outstanding shares of its Articles of Incorporation capital stock or By-Laws; other securities or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesstock;
(c) neither Parent nor issue, sell, pledge, dispose of or encumber any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class securities (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business business, upon the exercise of Parent Stock Options outstanding on the Agreement Date and consistent with past practices; (iii) assumedisclosed in the Parent Disclosure Letter), guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations enter into any amendment of any other person term of any outstanding security, or as otherwise set out in Section 6.2 of the Parent Disclosure Letter; wholly owned Subsidiaries of Parent, or by such Subsidiaries to Parent and other than a Parent Subsidiary short-term investments of cash in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingbusiness);
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Energy Fuels Inc)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees on behalf of itself and its Subsidiaries that, between the date of this Agreement to and the Effective Time, unless Company shall otherwise agree in writing, or except as otherwise contemplated by this Agreement or as required by Law, or unless the Company shall otherwise consent in writing, the businesses of Parent and its Subsidiaries shall be conducted only in, and Parent shall not, and Parent shall not permit any of its Subsidiaries to, take any action except (a) in the Parent’s Ordinary Course of Business or (b) as set forth in Section 4.2 of the Parent Disclosure LetterSchedule; and Parent will use its commercially reasonable efforts to preserve substantially intact the business organization of Parent and its Subsidiaries, to keep available the services of the present officers, employees and consultants of Parent and its Subsidiaries, to preserve the present relationships of Parent and its Subsidiaries with customers, clients, suppliers and other Persons with which Parent and its Subsidiaries have significant business relations and pay all applicable federal and material state, local and foreign Taxes when due and payable (other than those Taxes the payment of which Parent or one of its Subsidiaries challenges in good faith in appropriate proceedings and which are fully reserved for to the extent required under GAAP) and to maintain in full force and effect all permits necessary for the conduct of the business of Parent and its Subsidiaries as currently conducted (“Parent Permits”). Without limiting the generality of the foregoing, except as (x) in the Parent’s Ordinary Course of Business, (y) expressly contemplated by this Agreement or (z) set forth in Section 4.2 of the Parent Disclosure Schedule, Parent shall not, and shall not permit any of its Subsidiaries, without the prior written consent of the Company, to:
(a) the respective businesses amend (i) its certificate or articles of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course incorporation or bylaws or comparable organizational documents or (ii) any material term of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of any outstanding security issued by Parent or any Parent Subsidiaryof its Subsidiaries;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or propertyproperty with respect to its capital stock (other than dividends paid by wholly-owned Subsidiaries of Parent to Parent or another wholly-owned Subsidiary of Parent), (ii) except as set forth on Section 4.2(b) of the Parent Disclosure Schedule, redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securities, or redeem (iii) issue, sell, pledge, dispose of or otherwise acquire encumber any (A) shares of its capital stock, (B) securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or (C) other securities of Parent or any of its Subsidiaries, other than (1) the issuance of shares of Parent Common Stock upon the capital exercise of Parent Options outstanding on the date hereof in accordance with the Parent Option Plan as in effect on the date hereof, (2) in connection with Parent’s tax withholding requirements, the repurchase or redemption of shares issued pursuant to the exercise of Parent Options outstanding on the date hereof, or (3) the issuance of stock options to officers, directors and employees of Parent and its Subsidiaries in the Ordinary Course of Business, provided that the aggregate number of shares of common stock of any Parent issuable upon the exercise of the Parent Subsidiariessuch options does not exceed 100,000 shares;
(c) neither Parent nor other than the acquisition of property and assets (by asset purchase, merger, consolidation, equity purchase or by any other manner) pursuant to binding agreements in effect on the date hereof and set forth on Section 4.2(c) of the Parent Subsidiaries shall Disclosure Schedule, acquire or agree to acquire (i) authorize for issuanceby merging or consolidating with, issue or sell any additional shares by purchasing a portion of the equity interests of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any assets, including real estate;
(d) materially amend, extend or terminate any Parent Material Contract, or waive, release or assign any material rights or claims thereunder, or enter into any new contract that would be deemed a Parent Material Contract if entered into prior to the date of this Agreement;
(e) transfer, lease, license, sell, mortgage, pledge, dispose of, encumber or subject to any Lien any property or assets or cease to operate any assets;
(f) except as required to comply with applicable Law or this Agreement and except for salary increases and bonuses payable after the date hereof in Parent’s Ordinary Course of Business (i) adopt, enter into, terminate, amend or increase the amount or accelerate the payment or vesting of any kind to acquire benefit or award or amount payable under any shares of, its capital stock Parent Employee Plan or other arrangement for the current or future benefit or welfare of any class director, officer or employee, other than to the extent necessary to avoid adverse tax consequences under Section 409A of the Code and any regulations (whether through the issuance in proposed or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Optionsfinal form) and guidance thereunder, (ii) incurincrease in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee, other than salary increases or bonuses payable in the Parent’s Ordinary Course of Business with respect to employees who are not officers or directors as set forth in Section 4.2(f)(ii) of the Parent Disclosure Schedule, (iii) other than benefits accrued through the date hereof, pay any benefit not provided for under any Parent Employee Plan as in effect on the date hereof, (iv) other than bonuses earned through the date hereof, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Parent Employee Plan; provided that, without limiting any Person’s right to exercise any outstanding Option in accordance with Section 4.2(b)(1) of this Agreement, there shall be no grant or award to any director, officer or employee of stock options, restricted stock, stock appreciation rights, stock based or stock related awards, performance units, units of phantom stock or restricted stock, or any removal of existing restrictions in any Parent Employee Plan or agreements or awards made thereunder, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Parent Employee Plan or (vi) change any actuarial or other assumptions used to calculate funding obligations with respect to any Parent Employee Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP;
(g) except for drawdowns on a Parent Credit Facility in the Parent’s Ordinary Course of Business, or increases in the available borrowings under a Parent Credit Facility as may be reasonably necessary or appropriate to address increased margin requirements or potential margin calls incurred in the Parent’s Ordinary Course of Business, (i) incur or assume or prepay any material indebtedness, (ii) modify any material indebtedness or any other material liabilities other than liability in the ordinary course of business and consistent with past practices; a manner that adversely affects Parent, (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary Person, except in the ordinary course Parent’s Ordinary Course of business and consistent with past practices; Business, or (iv) make any loans, advances or capital contributions to, or investments in, any other Person other than customary loans or advances to employees and customers in accordance with past practice;
(h) change any accounting policies or procedures (including procedures with respect to reserves, revenue recognition, payments of accounts payable and collection of accounts receivable) used by it unless required by Parent’s registered independent public auditors, applicable law or GAAP;
(i) make any material Tax election or material change in any Tax election, change or consent to change Parent’s or any of its Subsidiaries’ method of accounting for Tax purposes, file any amended Tax Return or enter into any contractsettlement or compromise of any Tax liability of Parent or its Subsidiaries in an amount in excess of $100,000;
(j) pay, discharge, satisfy, settle or compromise any claim, litigation or any legal proceeding, except for any settlement or compromise involving less than $250,000, but subject to an aggregate maximum of $500,000, including all fees, costs and expenses associated therewith but excluding from such amounts any contribution from any insurance company or other parties to the litigation;
(k) enter into any negotiation with respect to, or adopt or amend in any respect, any collective bargaining agreement;
(l) adopt or amend in any respect, commitment any work rule or practice, or any other labor-related agreement or arrangement;
(m) enter into any material agreement or arrangement with respect any of its officers, directors, employees or any “affiliate” or “associate” of any of its officers or directors (as such terms are defined in Rule 405 under the Securities Act), except as are in Parent’s Ordinary Course of Business;
(n) enter into any agreement, arrangement or contract to allocate, share or otherwise indemnify for Taxes;
(o) make, authorize or agree to make any capital expenditures in an aggregate amount exceeding $1,000,000 for each quarterly period;
(p) dispose of, license or permit to abandon, invalidate or lapse, any rights in, to or for the use of any material Intellectual Property;
(q) change, in any material respect, policies regarding (i) the pricing of the execution and/or clearing of trades, or (ii) the amount of interest rebated to customers on, or interest associated with, customer margin accounts;
(r) change, in any material respect, policies regarding the commissions paid to brokers;
(s) engage in any hiring, firing or redeploying of employees, other than in Parent’s Ordinary Course of Business;
(t) make any material change to any credit or risk management policies, practices or procedures; or (u) agree or commit to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that during the date Interim Period, except (a) as may be required by Law, (b) as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (c) as may be expressly contemplated or permitted pursuant to this Agreement, (d) as set forth in Section 6.2 of this Agreement to the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure LetterLetter or (e) as reasonably required to comply with, establish or implement COVID-19 Measures: (x) Parent shall, and shall cause its Subsidiaries to, conduct the business of Parent and its Subsidiaries, as applicable, in the ordinary course of business and in a manner consistent with past practice in all material respects (provided that (1) no action by Parent or its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) with respect to any of the matters specifically addressed by any other provisions of this Section 6.2 will be deemed a breach of this clause (x), unless such action would constitute a breach of one or more of such other provisions, (2) the failure by Parent or any of its Subsidiaries to take any action prohibited by clauses (a) through (j) below will not be deemed to be a breach of this clause (x), and (3) acquisitions and dispositions of investments in Parent Portfolio Companies in accordance with Parent’s investment objectives, policies, and restrictions in effect as of the date hereof will not be deemed to be a breach of this clause (x)); and (y) Parent shall not, and shall not permit any of its Subsidiaries to:
(a) amend or otherwise change, in any material respect, the respective businesses organizational documents of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course (or such equivalent organizational or governing documents of business and consistent with past practices, and there shall be no material changes in the conduct any of the operations of Parent or any Parent Subsidiaryits Subsidiaries);
(b) except for transactions solely among Parent shall not (i) sell or pledge or agree to sell or pledge any stock and its wholly-owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) , split, combine combine, reclassify, redeem, repurchase or reclassify otherwise acquire or amend the terms of any shares of its outstanding capital stock or declare, set aside other equity interests or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesrights;
(c) neither except for transactions solely among Parent nor any of and its wholly-owned Subsidiaries or in connection with the Parent Subsidiaries shall DRIP, issue, sell, pledge, dispose, encumber or grant any (i) authorize for issuanceshares of its or its Subsidiaries’ capital stock, issue (ii) options, warrants, convertible securities or sell any additional shares of, or other rights of any kind to acquire any shares of, of its or its Subsidiaries’ capital stock or (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries;
(d) (i) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to Parent’s or any of its Subsidiaries’ capital stock or other equity interests, other than (A) dividends and distributions paid by any wholly-owned Subsidiary of Parent to Parent or any of its wholly-owned Subsidiaries, (B) regular quarterly cash distributions payable by Parent on a quarterly basis consistent with past practices and Parent’s investment objectives and policies as publicly disclosed or (C) the authorization and payment of any class dividend or distribution necessary for Parent to maintain its qualification as a RIC or avoid any entity-level Tax, in each case as reasonably determined by Parent; or (whether through the issuance ii) purchase, redeem or granting otherwise acquire share of optionscapital stock or other equity interests of Parent or its Subsidiaries (other than wholly-owned Subsidiaries) or any option, warrants, commitments, subscriptions, or rights to purchase acquire any such shares or otherwiseother equity interests.
(e) directly or indirectly acquire (including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation, business combination among Parent and its wholly-owned Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, in each case that are material to Parent and its Subsidiaries, taken as a whole, and except for unissued shares acquisitions of Parent Common Stock reserved for issuance upon Portfolio Company investments in accordance with Parent’s investment objectives, policies and restrictions;
(f) amend, enter into or terminate any Parent Material Contract other than (i) in the exercise ordinary course of business consistent with past practice and (ii) which would not have a Parent Employee Stock OptionsMaterial Adverse Effect;
(g) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as otherwise required by Applicable Law;
(i) make or change any material Tax election other than in the ordinary course of business, (ii) incurchange any material method of Tax accounting other than in the ordinary course of business, assume (iii) amend any material Tax Return, or prepay (iv) agree to any indebtedness extension or any other waiver of the statute of limitations with respect to a material liabilities amount of Tax other than in the ordinary course of business and consistent with past practices; practice and the Parent’s investment objectives and policies;
(iiii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations enter into a new line of any other person other than a Parent Subsidiary business outside of Parent’s investment objective as described in the ordinary course of business and consistent with past practicesParent SEC Documents (provided, that the foregoing shall not apply in any way to any Parent Portfolio Company); or or
(ivj) enter into any contract, agreement, commitment or arrangement with respect agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From the date of this Agreement to hereof until the Effective Time, unless Company shall except as Target otherwise agree agrees in writing, as set forth in the Parent Disclosure Schedule, or as otherwise contemplated by this Agreement or Agreement, Parent shall conduct its business in the Parent Disclosure Letter:ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of its present officers and key employees, subject to the terms of this Agreement. Except as otherwise provided in this Agreement, and without limiting the generality of the foregoing, from the date hereof until the Effective Time, without Target’s written consent (which consent shall not be unreasonably withheld):
(a) the respective businesses Except for an amendment to increase its authorized Parent Common Shares to 150,000,000, Parent shall not adopt or propose any change to its certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent incorporation or any Parent Subsidiarybylaws (or similar organizational documents);
(b) Except as set forth in Section 6.2(b) to the Parent Disclosure Schedule, Parent shall not, and shall not permit any of its Subsidiaries to (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, with respect to any shares of capital stock of Parent or propertyits subsidiaries (except for intercompany dividends from direct or indirect wholly owned subsidiaries, or (ii) repurchase, redeem or otherwise acquire any outstanding shares of its capital stock or shares of the capital stock of other securities of, or other ownership interests in, Parent or any of the Parent its Subsidiaries, other than intercompany acquisitions of stock;
(c) Parent shall not, and shall not permit any of its Subsidiaries to, merge or consolidate with any other Person or acquire assets of any other Person for aggregate consideration in excess of $5,000,000, or enter a new line of business or commence business operations in any country in which Parent is not operating as of the date hereof;
(d) Except as set forth in Section 6.2(d) of the Parent Disclosure Schedule, Parent shall not, and shall not permit any of its Subsidiaries to, sell, lease, license or otherwise surrender, relinquish or dispose of any assets or properties (other than among Parent and its direct and indirect wholly owned Subsidiaries) with an aggregate fair market value exceeding $5,000,000 (other than sales of Hydrocarbons in the ordinary course of business);
(e) Parent shall not settle any material Audit, make or change any material Tax election or file any material amended Tax Return except as set forth in Section 5.9 of the Target Disclosure Schedule;
(f) Except as otherwise permitted by this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to, (i) issue equity securities for consideration in excess of $5,000,000 in the aggregate, or (ii) incur any indebtedness except trade debt in the ordinary course of business, debt pursuant to existing credit facilities or arrangements, and other debt, which other debt shall not exceed $5,000,000 in the aggregate;
(g) Parent shall not, and shall not permit any of its Subsidiaries to, change any method of accounting or accounting practice by Parent or any of its Subsidiaries, except for any such change required by GAAP;
(h) Parent shall not amend or otherwise change the terms of the Parent Engagement Letter, except to the extent that any such amendment or change would result in terms more favorable to Parent;
(i) Parent shall not adopt a plan of complete or partial liquidation, dissolution, or reorganization;
(j) Parent shall not, and shall not permit any of its Subsidiaries to, take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a “plant closing” or “mass layoff” (each as defined in the WARN Act) without in good faith attempting to comply with the WARN Act;
(k) Except as set forth in Section 6.2(k) of the Parent Disclosure Schedule, neither Parent nor any of the Parent its Subsidiaries shall become bound or obligated to participate in any operation, or consent to participate in any operation, with respect to any Oil and Gas Interests that will individually cost in excess of $5,000,000 unless the operation is a currently existing obligation of Parent or any of its Subsidiaries or necessary to extend, preserve or maintain an Oil and Gas Interest;
(l) Parent shall not, and shall not permit any of its Subsidiaries to, (i) authorize for issuanceenter into any futures, issue hedge, swap, collar, put, call, floor, cap, option or sell any additional shares ofother contracts that are intended to benefit from or reduce or eliminate the risk of fluctuations in the price of commodities, including Hydrocarbons or rights of any kind to acquire any shares ofsecurities, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business in accordance with Parent’s current policies or (ii) enter into any fixed price commodity sales agreements with a duration of more than three months;
(m) Parent shall not, and consistent shall not permit any of its Subsidiaries to, (i) adopt, amend (other than amendments that reduce the amounts payable by Parent or any Subsidiary, or amendments required by law to preserve the qualified status of a Parent Benefit Plan or otherwise comply with past practices; ERISA, the Code or other applicable law) or assume an obligation to contribute to any employee benefit plan or arrangement of any type or collective bargaining agreement or enter into any employment, severance or similar contract with any Person (including contracts with management of Parent or any Subsidiaries that might require that payments be made upon consummation of the Transactions) or amend any such existing contracts to increase any amounts payable thereunder or benefits provided thereunder, (ii) engage in any transaction (either acting alone or in conjunction with any Parent Benefit Plan or trust created thereunder) in connection with which Parent or any Subsidiary could be subjected (directly or indirectly) to either a civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code, (iii) assumeterminate any Parent Benefit Plan in a manner, guaranteeor take any other action with respect to any Parent Benefit Plan, endorse or otherwise become liable or responsible that could result in the liability of Parent to any person, (whether directly, contingently or otherwiseiv) for take any action that could adversely affect the obligations qualification of any other person other than Parent Benefit Plan or its compliance with the applicable requirements of ERISA, (v) fail to make full payment when due of all amounts which, under the provisions of any Parent Benefit Plan, any agreement relating thereto or applicable law, Parent or any Subsidiary is required to pay as contributions thereto or (vi) fail to file, on a timely basis, all reports and forms required by federal regulations with respect to any Parent Subsidiary Benefit Plan; provided, however, that Parent may issue stock options, stock appreciation rights, and bonuses in the ordinary course of business business;
(n) Parent shall not, and consistent with past practices; or (iv) shall not permit any of its Subsidiaries to, enter into any contract, agreement, commitment or arrangement with respect agreement to license or purchase seismic data that will cost in excess of $5,000,000, other than pursuant to agreements or commitments existing on the date hereof; and
(o) Parent shall not, and shall not permit any of its Subsidiaries to, agree or commit to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Plains Exploration & Production Co)
Conduct of Business by Parent Pending the Merger. From Except as ------------------------------------------------ contemplated by the Parent Disclosure Schedule, this Agreement and the other Transaction Documents, during the period from the date of this Agreement to the Effective Time, unless Company shall otherwise agree Parent will, and will cause each of its Subsidiaries to, carry on its business in writingthe usual, or regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith. Except as otherwise permitted or contemplated by this Agreement Agreement, the Transaction Documents or the Parent Disclosure LetterSchedule, Parent will not, and will not permit any of its Subsidiaries to, without the prior consent (which will not be unreasonably withheld or delayed) of Company:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend dividends on, or make any other distribution payable actual, constructive or deemed distributions in cashrespect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends and other distributions by direct or indirect wholly owned Subsidiaries), (ii) other than in the case of any direct or indirect wholly owned Subsidiary of Parent, split, combine or reclassify any of its capital stock or propertyissue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of Parent or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, sell, pledge, dispose of or otherwise encumber a substantial portion of its capital stock, any other voting securities or equity equivalent (other than options issued to employees of Parent and its Subsidiaries in the ordinary course of business) or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of Parent SubsidiariesCommon Stock upon the exercise of options (whether or not presently exercisable) outstanding on the date of this Agreement or upon the exercise of warrants outstanding on the date of this Agreement, in each case in accordance with their current terms;
(c) neither Parent nor any amend its Amended and Restated Articles of Incorporation or Bylaws or other comparable organizational documents;
(d) subject to Company approval, make an acquisition of the assets of or equity in (whether by purchase, merger or otherwise) any business or any corporation, partnership, association or other business organization or division thereof, which is material to Parent Subsidiaries shall and its Subsidiaries, taken as a whole;
(ie) authorize except for issuanceParent Permitted Encumbrances, issue as required by contracts and agreements set forth in exhibits to the Parent SEC Reports, or sell sell, lease, license, mortgage, otherwise encumber or subject to any additional shares lien, charge or encumbrance or otherwise dispose of, or rights of agree to sell, lease, license, mortgage or otherwise encumber or subject to any kind to acquire any shares lien, charge or encumbrance or otherwise dispose of, a significant portion of its capital stock of any class (whether through the issuance or granting of optionsassets, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than pursuant to transactions that are in the ordinary course of business (including, without limitation, any sale transfer or other disposition of interests in oil and consistent with past practices; gas leaseholds (iii) assumeincluding, guaranteewithout limitation, endorse or otherwise become liable or responsible (whether directlyby abandonment, contingently or otherwise) for the obligations of any farm-ins, farm-outs, leases, swaps and subleases), hydrocarbons and other person other than a Parent Subsidiary mineral products in the ordinary course of business of the oil and gas operations conducted by Parent or its Subsidiaries) consistent with past practices; practice and not material to Parent and its Subsidiaries taken as a whole. When used in this Agreement, the term "Parent Permitted Encumbrances" will include any liens, title defects, preferential rights or other encumbrances upon any of the relevant individual's or entities' property, assets or revenues, whether now owned or hereafter acquired, that are (i) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceeding, (ii) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements, (iii) for taxes not yet due or which are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of Parent or its Subsidiaries, as the case may be, in conformity with GAAP, (iv) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, (v) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially Interfere with the ordinary conduct of the business of Parent or such Subsidiary of Parent, (vi) created pursuant to construction, operating and maintenance agreements, space lease agreements and other similar agreements, in each case having ordinary and customary terms and entered into in the ordinary course of business by Parent and its Subsidiaries, (vii) the terms, conditions, restrictions, exceptions, reservations, limitations and other matters contained in the agreements, instruments and other documents (including, without limitation, division orders) which create or reserve to Parent (or otherwise govern) its interest in any oil and gas assets, provided that the same do not reduce the net revenue interest of Parent in the oil and gas asset affected thereby, (viii) royalties, overriding royalties, reversionary interests, production payments, net profits interests and similar burdens affecting any oil and gas asset if the net cumulative effect of such burdens does not operate to reduce the net revenue interest in the oil and gas asset affected thereby, (ix) preferential rights to purchase and required third party consents with respect to which any necessary waivers or consents shall have been obtained or shall have been requested to be obtained from the appropriate parties and the appropriate time period for asserting such rights shall have expired without an exercise of such rights, or preferential rights to purchase and required third party consents which are not applicable to the transactions contemplated hereby, (x) liens for Taxes and assessments which are not yet delinquent or which are being contested by Parent in good faith, (xi) rights existing under applicable law (including without limitation statutory liens) or operating agreements or similar contracts to assert liens against the oil and gas assets, but not including liens and other rights which have actually been asserted, unless Parent disputes in good faith the validity of such liens or the amount claimed to be owed in connection therewith or such lien or other right is not enforceable against the interest of Parent, (xii) conventional rights of reassignment requiring less than thirty-two days notice to the holder of such rights, (xiii) any of the following which do not materially and adversely affect the oil and gas assets: easements, rights-of-way, servitudes, permits, coal-mining leases, surface leases and other rights in respect to surface operations, pipelines, logging, canals, ditches, reservoirs or the like; conditions, covenants or other restrictions; easements of streets, alleys, highways, pipelines, telephone lines, power lines, railways and other easements or rights- of-way on, over or with respect of the oil and gas assets, (xiv) any obligations or duties affecting an oil and gas asset to any municipality or public authority with respect to any franchise, grant, license or permit and all applicable laws, rules and order of any governmental authority, (xv) all rights to consent by, required notices to, filings with or other action by governmental entities in connection with the sale or conveyance of oil and gas leases, permits, or interests therein, if the same are customarily obtained contemporaneously with or subsequent to such sale or conveyance, and which would not be triggered by the transactions contemplated hereby, (xvi) existing operating agreements, unit agreements, gas purchase contracts and any and all other agreements which are normal and customary in the oil and gas exploration, development, production or extraction business or in the business of processing of gas and gas condensate or production for the extraction of proper products therefrom, to the extent that the same do not reduce the net revenue interest of Company in the oil and gas asset affected thereby, (xvii) any other defect or imperfection in title which would customarily be waived by a Person engaged in the exploration for oil or gas and the operation of oil and/or gas properties in the regions where the oil and gas assets are located, or which can be cured by the provision of the forced pooling statutes of applicable Law which are applicable to the affected oil and gas assets, (xviii) created pursuant to or arising under the Credit Agreement dated September 28, 2000 among Parent, PCC Energy Limited, PCC Energy Corp., Toronto Dominion (Texas), Inc., The Toronto-Dominion Bank, TD Securities (USA), Inc. and various lenders signatory thereto (collectively, as amended, the "Parent Credit Agreement"), and (xix) the matters described in Section 4.2(e) of -------------- the Parent Disclosure Schedule;
(f) except in connection with the transactions contemplated by the Transaction Documents, incur any material indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities, guarantee any debt securities or make any material loans, advances or capital contributions to, or other investments in, any other Person, or enter into any arrangement having the economic effect of any of the foregoing;
(g) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of Parent or any Subsidiary of Parent (unless an alteration to the corporate structure or ownership of a Subsidiary does not cause such Subsidiary not to be wholly owned by Parent) other than as contemplated by the Transaction Documents;
(h) enter into, amend, terminate or waive any provision of, any agreement or arrangement with any Parent Related Party or enter into any transaction with any Parent Related Party;
(i) take any action which would prevent the Merger from constituting a reorganization within the meaning of Section 368(a) of the Code; or
(j) enter into any contract, agreement, commitment or arrangement with respect to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Petrocorp Inc)
Conduct of Business by Parent Pending the Merger. From the date of this Agreement to hereof until the Effective Time, unless Company shall except as Target otherwise agree agrees in writing, as set forth in Section 6.2 of the Parent Disclosure Schedule, or as otherwise contemplated by this Agreement Agreement, Parent shall conduct its business in the ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of its present officers and key employees, subject to the terms of this Agreement. Except as otherwise provided in this Agreement, and without limiting the generality of the foregoing, from the date hereof until the Effective Time, without Target’s prior written consent (which consent shall not be unreasonably withheld, delayed or the Parent Disclosure Letter:conditioned):
(a) the respective businesses Parent shall not adopt or propose any change to its Certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Formation or any Parent SubsidiaryBylaws (or similar organizational documents);
(b) Parent shall not, and shall not permit any of its Subsidiaries to (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, with respect to any shares of capital stock of Parent or propertyits subsidiaries (except for intercompany dividends from direct or indirect wholly owned subsidiaries), or (ii) repurchase, redeem or otherwise acquire any outstanding shares of its capital stock or shares of the capital stock of other securities of, or other ownership interests in, Parent or any of the Parent its Subsidiaries, other than intercompany acquisitions of stock;
(c) neither Parent nor shall not, and shall not permit any of its Subsidiaries to, merge or consolidate with any other Person or acquire assets of any other Person for aggregate consideration in excess of $2,500,000 in any single transaction (or series of related transactions) or $5,000,000 in the aggregate, or enter a new line of business or commence business operations in any country in which Parent is not operating as of the date hereof;
(d) Except as set forth in Section 6.2 of the Parent Disclosure Schedule, Parent shall not, and shall not permit any of its Subsidiaries to, sell, lease, license or otherwise surrender, relinquish or dispose of any assets or properties (other than to Target and its direct and indirect wholly owned Subsidiaries) with an aggregate fair market value exceeding $2,500,000 in any single transaction (or series of related transactions) or $5,000,000 in the aggregate (other than sales of Hydrocarbons in the ordinary course of business);
(e) Parent shall not settle any material Audit, make or change any material Tax election or file any material amended Tax Return except as set forth in Section 5.9 of the Parent Disclosure Schedule;
(f) Except as otherwise permitted by this Agreement and the terms of any refinancing of indebtedness in connection with the Transactions, Parent shall not, and shall not permit any of its Subsidiaries to, (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class securities (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incurenter into any amendment of any term of any outstanding security of Parent or of any of its Subsidiaries, assume or prepay (iii) incur any indebtedness or any other material liabilities other than except trade debt in the ordinary course of business and consistent with past practices; debt pursuant to existing credit facilities or arrangements or any refinancing thereof (iii) assumeexcept as set forth in Section 6.2 of the Parent Disclosure Schedule), guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into fail to make any contract, agreement, commitment or arrangement with respect required contribution to any of the foregoing;
Parent Benefit Plan, (dv) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
increase compensation or bonuses (e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take except for compensation or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company bonuses as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.set forth in
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that during the date Interim Period, except (a) as may be required by Law, (b) as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (c) as may be expressly contemplated or permitted pursuant to this Agreement, (d) as set forth in Section 6.2 of this Agreement to the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure LetterLetter or (e) as reasonably required to comply with, establish or implement COVID-19 Measures: (x) Parent shall, and shall cause its Subsidiaries to, conduct the business of Parent and its Subsidiaries, as applicable, in the ordinary course of business and in a manner consistent with past practice in all material respects and use reasonable best efforts to preserve intact its business organization, maintain in effect all material licenses and permits required to carry on its business, maintain in effect any exemptive orders or exemptive relief which it has received from the SEC and which are currently in effect and preserve its material business relationships (provided that (1) no action by Parent or its Subsidiaries (including Acquisition Sub) with respect to any of the matters specifically addressed by any other provisions of this Section 6.2 will be deemed a breach of this clause (x), unless such action would constitute a breach of one or more of such other provisions, (2) the failure by Parent or any of its Subsidiaries to take any action prohibited by clauses (a) through (j) below will not be deemed to be a breach of this clause (x), and (3) acquisitions and dispositions of investments in Parent Portfolio Companies in accordance with Parent’s investment objectives, policies, and restrictions in effect as of the date hereof will not be deemed to be a breach of this clause (x)); and (y) Parent shall not, and shall not permit any of its Subsidiaries to:
(a) amend or otherwise change, in any material respect, the respective businesses organizational documents of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course (or such equivalent organizational or governing documents of business and consistent with past practices, and there shall be no material changes in the conduct any of the operations of Parent or any Parent Subsidiaryits Subsidiaries);
(b) except for transactions solely among Parent shall not (i) sell or pledge or agree to sell or pledge any stock and its wholly-owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) , split, combine combine, reclassify, redeem, repurchase or reclassify otherwise acquire or amend the terms of any shares of its outstanding capital stock or declare, set aside other equity interests or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiariesrights;
(c) neither except for transactions solely among Parent nor and its wholly-owned Subsidiaries, issue, sell, pledge, dispose, encumber or grant any of the Parent Subsidiaries shall (i) authorize for issuanceshares of its or its Subsidiaries’ capital stock, issue (ii) options, warrants, convertible securities or sell any additional shares of, or other rights of any kind to acquire any shares of, of its or its Subsidiaries’ capital stock or (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries;
(d) (i) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to Parent’s or any of its Subsidiaries’ capital stock or other equity interests, other than (A) dividends and distributions paid by any wholly-owned Subsidiary of Parent to Parent or any of its wholly-owned Subsidiaries, (B) regular quarterly cash distributions payable by Parent on a quarterly basis consistent with past practices and Parent’s investment objectives and policies as publicly disclosed or (C) the authorization and payment of any class dividend or distribution necessary for Parent to maintain its qualification as a RIC, as reasonably determined by Parent; or (whether through the issuance ii) purchase, redeem or granting otherwise acquire share of optionscapital stock or other equity interests of Parent or its Subsidiaries (other than wholly-owned Subsidiaries) or any option, warrants, commitments, subscriptions, or rights to purchase acquire any such shares or otherwiseother equity interests.
(e) directly or indirectly acquire (including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation, business combination among Parent and its wholly-owned Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, in each case that are material to Parent and its Subsidiaries, taken as a whole, and except for unissued shares acquisitions of Parent Common Stock reserved for issuance upon Portfolio Company investments in accordance with Parent’s investment objectives, policies and restrictions;
(f) amend, enter into or terminate any Parent Material Contract other than (i) in the exercise ordinary course of business consistent with past practice in all material respects and (ii) which would not have a Parent Employee Stock OptionsMaterial Adverse Effect;
(g) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as otherwise required by Applicable Law;
(i) make or change any material Tax election, (ii) incur, assume or prepay change any indebtedness or any other material liabilities method of Tax accounting other than in the ordinary course of business and consistent with past practices; business, or (iii) assume, guarantee, endorse agree to any extension or otherwise become liable or responsible waiver of the statute of limitations with respect to a material amount of Tax;
(whether directly, contingently or otherwisei) for the obligations enter into a new line of any other person other than a Parent Subsidiary business outside of Parent’s investment objective as described in the ordinary course of business and consistent with past practicesParent SEC Documents (provided, that the foregoing shall not apply in any way to any Parent Portfolio Company); or or
(ivj) enter into any contract, agreement, commitment or arrangement with respect agreement to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that, during the date of this Agreement to the Effective TimeInterim Period, unless Company shall otherwise agree in writing, except as expressly provided or as otherwise contemplated permitted by this Agreement or set forth in Section 5.2 of the Parent Disclosure Letter:
Schedule or unless the Company shall otherwise give its prior written consent (a) the respective businesses which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of Parent and the Parent its Subsidiaries shall be conducted only to, use commercially reasonable efforts to conduct its business in the ordinary and usual course of business and consistent with past practicesbusiness. Except as expressly provided or permitted by this Agreement or as set forth in Section 5.2 of the Parent Disclosure Schedule, during the Interim Period, Parent shall not, and there shall be no material changes in the conduct cause each of its Subsidiaries not to, directly or indirectly, do any of the operations following without the prior written consent of Parent or any Parent Subsidiary;
the Company (b) Parent which consent shall not be unreasonably withheld, conditioned or delayed):
(i) sell or pledge or agree amend Parent’s Certificate of Incorporation to sell or pledge any stock owned by it in change any of the rights or privileges of the Parent Subsidiaries; Common Stock;
(ii) amend its Articles Merger Sub’s Certificate of Incorporation or By-Laws; or Bylaws;
(iii) splitengage in any repurchase at a premium, combine recapitalization, restructuring or reclassify reorganization with respect to any shares of its outstanding Parent’s capital stock or stock;
(iv) declare, set aside or pay any extraordinary dividend or other extraordinary distribution payable (whether in cash, stock or other securities or property, or redeem any combination thereof) in respect of any of Parent’s capital stock;
(v) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee (other than guarantees of bank debt of the Company’s Subsidiaries entered into in the ordinary course of business) or endorse or otherwise as an accommodation become responsible for the obligations of any Person, or make any loans, advances or enter into any financial commitments or lease commitments, in any case in excess of One Million dollars ($1,000,000);
(vi) acquire any shares (by merger, consolidation, acquisition of its capital stock or shares assets or otherwise) a significant portion of the capital stock or other equity interests in, or assets of, any corporation, limited liability company, partnership, joint venture or other business organization or division thereof, or enter into any definitive agreement with respect thereto, unless such acquisition or the entering into of such definitive agreement would not require any vote of Parent’s stockholders or require that any pro forma or other additional financial statements or information be added to the Parent SubsidiariesRegistration Statement;
(cvii) neither Parent nor sell, transfer, lease, license, sublicense, mortgage, pledge, encumber, grant or otherwise dispose of any material Company Intellectual Property Rights, other than in the ordinary course of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofParent’s business, or amend or modify in any material respect any existing material agreements with respect to any Company Intellectual Property Rights;
(viii) issue, sell, transfer, pledge, dispose of or encumber any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof capital stock, of the Company or any of its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise)Subsidiaries, except for unissued (1) a financing transaction or a series of related financing transactions resulting in net proceeds to the Parent of at least $30,000,000 in which the price per share or the exercise or conversion price per share in any such issuance is greater than $1.46, or (2) the issuance of shares of Parent Common Stock reserved for issuance upon pursuant to the exercise of Parent Employee Stock Options, Plans or pursuant to the Parent Warrants;
(iiix) incur, assume hire or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicesappoint a permanent Chief Executive Officer; or
(iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (ivx) enter into any contract, agreement, commitment agreement or arrangement with respect contract to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Parent agrees to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be substantially identical at the Effective Time. Parent shall promptly notify the Company shall otherwise agree of any event or occurrence not in writingthe ordinary course of business of Parent. By way of amplification and not limitation, or except as otherwise specifically contemplated by this Agreement or as specifically set forth in Section 6.02 of the Parent Disclosure LetterSchedule, Parent shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent, which consent shall not be unreasonably withheld, of Company:
(a) amend or otherwise change the respective businesses Certificate of Parent Incorporation and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Bylaws or any Parent Subsidiaryequivalent organizational documents;
(b) Parent shall not (i) sell issue, sell, pledge, dispose of, grant, encumber, authorize or pledge propose the issuance, sale, pledge, disposition, grant or agree to sell or pledge any stock owned by it in any encumbrance of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement;
(c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business;
(d) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any class (whether through the issuance other securities in respect of, in lieu of or granting in substitution for shares of optionsits capital stock, warrants, commitments, subscriptions, rights to or purchase or otherwise)otherwise acquire, except for unissued directly or indirectly, any shares of Parent Common Stock reserved its equity interests except from former employees, managers, directors and consultants in accordance with agreements providing for issuance upon the exercise repurchase of Parent Employee Stock Optionsshares in connection with any termination of service by such party;
(e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof;
(f) institute or settle any Legal Proceeding for an amount greater than $100,000;
(g) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than such indebtedness described herein;
(h) authorize any unbudgeted capital expenditure in excess of $100,000, individually or in the aggregate;
(i) enter into any lease or contract for the purchase or sale of any property, real or personal, in an amount greater than $50,000 on an annual basis;
(j) waive or release any material right or claim;
(k) increase, or agree to increase, the compensation payable, or to become payable, to its (i) officers or (ii) incuremployees (provided that any employee’s annual compensation may be increased by an amount not to exceed 10% of such employee’s current annual base salary), assume or prepay grant any indebtedness severance or termination pay to, or enter into any employment or severance agreement with, any of its managers, officers or other employees or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law;
(l) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or stock options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any stock options granted under any of such plans, except as specifically required by the terms of such plans or any other material liabilities such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the Parent Disclosure Schedule;
(m) extend any offers of employment to potential employees, consultants or independent contractors or terminate any existing employment relationships for which the annual remuneration is greater than $200,000;
(n) enter into, amend or terminate any Material Contract to which it is a party;
(o) enter into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.02;
(p) other than in the ordinary course of business and consistent with past practices; practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations that may not be cancelled without penalties by Parent upon notice of 30 days or less;
(iiiq) assumetake any action, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary reasonable and usual action in the ordinary course of business and business, consistent with past practices; practice, with respect to accounting policies, principles or procedures;
(ivr) make or change any Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any contract, closing agreement, commitment settle any Tax claim or arrangement with respect assessment relating to Parent, surrender any right to claim refund of Taxes, consent to any extension or waiver of the foregoing;
(d) Parent shall use reasonable efforts limitation period applicable to preserve intact the business organization of Parent and the Parent Subsidiariesany Tax claim or assessment relating to Parent, or take any other action or omit to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification have the effect of increasing the Tax liability of Parent or the Company;
(s) make (or become obligated to make) any bonus payments to any of its officers or employees except as set forth on Schedule 6.02(s);
(t) except as permitted by GAAP, revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable;
(u) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, subject only to ordinary wear and tear, unless it is more commercially reasonable to replace any such asset in the ordinary course of Parent’s business;
(v) take any action or fail to take any reasonable action that would cause there to be a Parent Material Adverse Effect;
(w) permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated and not replaced by a substantially similar replacement policy without notice to the Company; and
(x) take, or agree in writing or otherwise to take, any of the actions described in subsections (a) through (w) above, or any action which is reasonably likely to make any of Parent’s or Merger Sub’s representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as a reorganization within the meaning of section 368(a) of the CodeEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (JK Acquisition Corp.)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the Effective Timeearlier of the termination of this Agreement and the consummation of the Merger, Acquiror covenants and agrees that, unless the Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:
Acquiror shall take all action necessary so that (a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(bi) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of conduct its business, and cause the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares businesses of its outstanding capital stock or declaresubsidiaries to be conducted, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; practice, including actions taken by Parent or its subsidiaries in contemplation of the Merger or other business acquisitions otherwise in compliance with this Agreement, and (iiiii) assumeParent shall not directly or indirectly do, guaranteeor propose to do, endorse any of the following without the prior written consent of the Company, which shall not be unreasonably withheld or delayed:
(a) amend or otherwise become liable change the Parent Charter Documents;
(b) acquire or responsible (whether directlyagree to acquire, contingently by merging or otherwise) for consolidating with, by purchasing an equity interest in or a portion of the obligations assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person person, or dispose of any assets, which, in any such case, would materially delay or prevent the consummation of the Merger and the other transactions contemplated by this Agreement, provided, however, the Parent may acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person, or dispose of any assets, in all cases, without the consent of the Company if the value of such transaction is less than 10% of the market capitalization of the Parent. (For the purposes of this section, market capitalization of the Parent shall equal the product of the total number of outstanding shares of the Parent multiplied by the closing price of such shares on Nasdaq on the date of determination.)
(c) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary of Parent Subsidiary in the ordinary course of business may declare and pay a dividend to its parent, and except that Parent may declare and pay regular quarterly cash dividends consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingpractice;
(d) Parent shall use reasonable efforts take any action to preserve intact change its accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable), except as required by a change in GAAP occurring after the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiariesdate hereof; andor
(e) neither Parent nor take or agree in writing or otherwise to take any of the Parent Subsidiaries shall actions described in Sections 4.03(a) through (id) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action above that would jeopardize qualification make any of the Merger as a reorganization within the meaning representations or warranties of section 368(a) of the CodeAcquiror contained in this Agreement untrue or incorrect or prevent Acquiror from performing or cause Acquiror not to perform its covenants hereunder.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent covenants and agrees that, unless the Company shall otherwise agree in writing, Parent shall not conduct any business other than actions taken by Parent or its subsidiaries in contemplation of the Merger and actions necessary to maintain the corporate existence of Parent and to keep the SEC filings of Parent current, and Parent shall use all reasonable efforts to preserve substantially intact the property and assets of Parent and its subsidiaries, and to keep available all services of the present officers, employees and consultants of Parent and its subsidiaries. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither Parent nor any of its subsidiaries shall, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Parent Disclosure LetterEffective Time, directly or indirectly do, or agree to do, any of the following without the prior written consent of the Company:
(a) the respective businesses amend or otherwise change Parent's Certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course Incorporation or by-laws or similar organizational documents of business and consistent with past practices, and there shall be no material changes in the conduct any of the operations of Parent or any Parent Subsidiaryits subsidiaries;
(b) Parent shall not (i) sell issue, sell, pledge, dispose of or pledge encumber, or agree to sell authorize the issuance, sale, pledge, disposition or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) splitencumbrance of, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof capital stock, or any other ownership interest (including, without limitation, any phantom interest) in Parent or any of its capital stock of any class subsidiaries (whether through except for the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon issuable pursuant to Stock Options which were granted under Parent Stock Option Plans and are outstanding on the exercise date hereof).
(c) directly or indirectly sell, pledge, dispose of or encumber any assets of Parent Employee Stock Optionsor any of its subsidiaries (except for sales or dispositions of cash or cash equivalents to the extent necessary to pay expenses of Parent in connection with the transactions contemplated by this Agreement, maintain the corporate existence of Parent and to conduct its operations as presently conducted);
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary of Parent may declare and pay a dividend to Parent, (ii) incursplit, assume combine or prepay reclassify any indebtedness of its capital stock or issue or authorize or propose the issuance of any other material liabilities other than securities or property in the ordinary course respect of, in lieu of business and consistent with past practices; or in substitution for shares of its capital stock, or (iii) assumeamend the terms or change the period of exercisability of, guaranteepurchase, endorse repurchase, redeem or otherwise become liable acquire, or responsible (whether directlypermit any subsidiary to purchase, contingently repurchase, redeem or otherwise) for otherwise acquire, any of its securities or any securities of its subsidiaries, including, without limitation, shares of Parent Common Stock or any option, warrant or right, directly or indirectly, to acquire shares of Parent Common Stock, or provide that upon the obligations exercise or conversion of any other person other than a Parent Subsidiary in such option, warrant or right the ordinary course of business and consistent with past practices; holder thereof shall receive cash, or (iv) enter into any contract, agreement, commitment or arrangement with respect propose to do any of the foregoing;
(di) Parent shall use reasonable efforts to preserve intact the acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiariesor division thereof; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take incur any action that would jeopardize qualification indebtedness for borrowed money or issue any debt securities, except for intercompany indebtedness between Parent and any of its wholly owned subsidiaries or between such wholly owned subsidiaries, or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the Merger obligations of any person or make any loans or advances; (iii) enter into or amend any material contract or agreement (except as a reorganization within the meaning of section 368(adescribed on Section 4.3(e) of the Code.Parent Disclosure Schedule);
Appears in 1 contract
Samples: Merger Agreement (HMSR Inc)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent covenants and agrees that, unless the Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only conduct its business in the ordinary and usual course of business and consistent with past practices, practice and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell directly or pledge indirectly do, or agree propose to sell or pledge any stock owned by it in do, any of the Parent Subsidiaries; following without the prior written consent of the Company:
(iia) amend its or otherwise change Parent's Articles of Incorporation or By-By- Laws; or ;
(iiii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside aside, make or pay any dividend or other distribution payable (whether in cash, stock or property, property or redeem or otherwise acquire any shares combination thereof) in respect of any of its capital stock stock; or shares of the capital stock of any of the Parent Subsidiaries;
(cii) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuanceissue, issue sell, pledge or sell dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class (or other property or assets whether through the issuance or granting of optionspursuant to any rights agreement, warrants, commitments, subscriptions, rights to purchase stock option plans or otherwise), except for unissued provided that Parent may issue shares of Parent Common Stock reserved for issuance upon pursuant to currently outstanding warrants, options or employee stock purchases referred to on the exercise Parent Schedule in response to Section 3.2 above and Parent may issue options pursuant to its 1998 Equity Compensation Plan in amounts and on terms consistent with past practice, provided that such option grants do not exceed 50,000 shares in the aggregate;
(c) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of Parent Employee Stock Optionsthe assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person, or dispose of any assets, which, in any such case, would materially delay or prevent the consummation of the Merger and the other transactions contemplated by this Agreement; or
(d) take any action to change its accounting policies or procedures except as required by a change in GAAP occurring after the date hereof; or
(e) take or agree in writing or otherwise to take, (i) any of the actions described in this Section 4.2; (ii) incurany action which would make any of Parent's representations or warranties in this Agreement, assume if made on and as of the date of such action or prepay agreement, untrue or incorrect in any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practicesrespect; (iii) assumeany action which could prevent it from performing, guaranteeor cause it not to perform, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the its obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practicesunder this Agreement; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of cause the Merger not to be treated as a reorganization within the meaning of section Section 368(a) of the Code; or (v) any action that would prevent or impede the Merger from qualifying as a "pooling of interests" for accounting purposes.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Parent agrees (except to the extent that the Company shall otherwise agree consent in writingwriting (such consent not to be unreasonably withheld, delayed or modified)), to carry on its business in the usual, regular and ordinary course and in substantially the same manner as otherwise previously conducted, to use all reasonable efforts consistent with past practices and policies to keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired, in any material respect, at the Effective Time. Parent shall promptly notify the Company of any event or occurrence not in the ordinary course of business of Parent. By way of amplification and not limitation, except as contemplated by this Agreement or as set forth in Section 5.02 of the Parent Disclosure Letter:Schedule, Parent shall not, between the date of this Agreement and the Effective Time, do, any of the following without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or modified):
(a) the respective businesses amend or otherwise change its Certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Incorporation or any Parent SubsidiaryBylaws or equivalent organizational documents;
(b) Parent shall not (i) sell issue, sell, pledge, dispose of, grant, encumber, authorize or pledge propose the issuance, sale, pledge, disposition, grant or agree to sell or pledge any stock owned by it in any encumbrance of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of, its of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of any class (whether through Parent, except pursuant to the issuance or granting terms of options, warrants, commitments, subscriptions, rights warrants or preferred stock outstanding on the date of this Agreement and except for grants of options to purchase or otherwise), except for unissued up to 644,000 shares of Parent Common Stock reserved for issuance upon pursuant to the exercise Parent Stock Plan;
(c) sell, lease, license, pledge, grant, encumber or otherwise dispose of Parent Employee Stock Optionsany of its properties or assets, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than except in the ordinary course of business and business, consistent with past practices; practice;
(iiid) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(e) cancel any indebtedness or waive any claims or rights of substantial value;
(f) make any change in any method if accounting or accounting practice or policy other than those required by U.S. GAAP;
(g) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party;
(h) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof;
(i) incur, other than to the Company, any indebtedness for borrowed money or issue any debt securities or assume, guaranteeguarantee or endorse, endorse or otherwise as an accommodation become liable or responsible (whether directlyfor, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary person, or make any loans or advances;
(j) authorize any capital expenditure in excess of $100,000, in the aggregate;
(k) enter into any lease or contract for the purchase or sale of any property, real or personal except in the ordinary course of business and business, consistent with past practices; practice;
(l) increase, or (iv) agree to increase, the compensation payable, or to become payable, to its officers or employees, except for increases in accordance with past practice in salaries or wages of its employees who are not its officers, or grant any severance or termination pay to, or enter into any contractemployment or severance agreement with, any of its directors, officers or other employees, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Plan, agreement, commitment trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law;
(m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or Parent Options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any Parent Options granted under any of such plans except as specifically required by the terms of such plans or any such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the Parent Disclosure Schedule;
(n) extend any offers of employment to potential employees who would receive cash compensation at a rate of $100,000 per year or more or extend any consulting or independent contracting offers that are not cancelable on prior notice of 30 days or less
(o) other than as contemplated by this Agreement, enter into, or perform, any transaction with, or for the benefit of any affiliate of Parent (other than payments made to officers, directors and employees in the ordinary course of business);
(p) initiate any clinical trial;
(q) schedule or conduct any meeting with FDA or other regulatory authority;
(r) settle any litigation;
(s) amend, modify or terminate in any material respect any Material Parent Contract or waive any material rights thereunder;
(t) waive any rights related to confidentiality under any contract or agreement;
(u) make, change or revoke any material Tax election, elect or change any method of accounting for Tax purposes, settle any action in respect of Taxes or enter into any contractual obligation in respect of Taxes with any Tax Authority; or
(v) authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing actions.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From (a) Parent agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the termination of this Agreement pursuant to Article III, except as set forth in Section 5.02 of the Parent Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Company shall otherwise agree consent in writing, writing (which consent shall not be unreasonably withheld or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:delayed):
(ai) Parent shall, and shall cause each Parent Subsidiary to, use its reasonable best efforts to conduct the respective businesses business of Parent and the Parent Subsidiaries shall be conducted only Subsidiaries, in the ordinary all respects material to Parent and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declaretaken as a whole, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and in a manner consistent with past practicespractice; and
(iiiii) assumeParent shall, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a and shall cause each Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contractto, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use its reasonable best efforts to preserve substantially intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its the current officers, employees and their present officers consultants of Parent and key employees, the Parent Subsidiaries and to preserve the goodwill current relationships of those having business relationships with it Parent and the Parent Subsidiaries; andSubsidiaries with customers, suppliers and other persons with which Parent or any Subsidiary has significant business relations.
(eb) By way of amplification and not limitation of Section 5.01(a), except as contemplated by any other provision of this Agreement or as set forth in Section 5.02 of the Parent Disclosure Schedule, neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the earlier of the Effective Time and the termination of the Agreement pursuant to Article VIII, directly or indirectly, do, or propose to do, any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed):
(i) amend or otherwise change its Memorandum and Articles of Association or equivalent organizational documents;
(ii) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (A) any shares of any class of capital stock of Parent or any Parent Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary (except for the issuance of up to a maximum of 60,965,705 Parent Ordinary Shares (whether in the form of Parent Ordinary Shares or Parent ADSs) issuable pursuant to employee stock options or up to a maximum of 172,512,573 Parent Ordinary Shares (whether in the form of Parent Ordinary Shares or Parent ADSs) issuable pursuant to the terms of the Parent Subsidiaries shall Convertible Notes outstanding on the date hereof, in the ordinary course of business and in a manner consistent with past practice in accordance with the terms of the Parent Stock Option Plans or such notes as in effect as of the date hereof) or (iB) knowingly take any assets of Parent or allow any Parent Subsidiary, except in the ordinary course of business and in a manner consistent with past practice;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to be taken any action which of its capital stock, except for dividends by any direct or indirect wholly owned Parent Subsidiary to Parent or any other Parent Subsidiary;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (B) except for borrowings under existing credit facilities in the ordinary course of business and in a manner consistent with past practice, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets; (C) enter into any contract or agreement other than in the ordinary course of business and in a manner consistent with past practice that, if in effect on the date hereof, would jeopardize qualify as a Parent Material Contract; (D) make, authorize or make any commitment with respect to any capital expenditure, except for capital expenditures that, in the treatment aggregate for each quarter, do not exceed 125% of the budgeted amounts set forth in Parent's acquisition capital expenditure budget attached as Section 5.02(b)(v) of Company as a pooling of interests for accounting purposesthe Parent Disclosure Schedule; or (iiE) knowingly take enter into or amend any action that would jeopardize qualification contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 5.02(b)(v);
(vi) make any investment in any entity (other than a subsidiary) in excess of $25 million;
(vii) increase the Merger as compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and in a reorganization within the meaning manner consistent with past practice in salaries or wages of section 368(aemployees of Parent or any Parent Subsidiary who are not directors or officers of Parent, or grant any severance or termination pay to (other than pursuant to existing contractual obligations disclosed in Section 4.10(a) of the Code.Parent Disclosure Schedule or in the ordinary course of business and in a manner consistent with past practice), or enter into any employment or severance agreement with any director, officer or other employee of Parent or of any Parent Subsidiary, or, except as required by Law, establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(viii) exercise its discretion with respect to or otherwise voluntarily accelerate the vesting of any Parent Stock Award as a result of the Merger, any other change of control of Parent (as defined in the Parent Stock Option Plans) or otherwise;
(ix) make any change in any material method of accounting, method of accounting principles or practice, except for such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the Securities Act, the Exchange Act, the SGX-ST, the SGX-ST Listing Manual, the Singapore Companies Act or the Singapore Securities Act, as the case may be, or the rules and regulations promulgated thereunder; (x) make any tax election inconsistent with past custom and practice or settle or compromise any material United States federal, state, local or non-United States income tax liability inconsistent with any accrual or reserve therefor on the consolidated balance sheet of Parent and the consolidated Parent Subsidiaries as of September 30, 2003;
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (St Assembly Test Services LTD)
Conduct of Business by Parent Pending the Merger. From (a) Parent agrees that, between the date of this Agreement to and the Effective Time, except as set forth in Section 5.02 of the Parent Disclosure Schedule or as contemplated by any other provision of this Agreement, unless the Company shall otherwise agree consent in writing, writing (such consent not to be unreasonably withheld or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:delayed):
(ai) the respective businesses business of Parent and the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall not take any action except in the ordinary and usual course of business and in a manner consistent with past practicespractice; and
(ii) Parent shall use its reasonable best efforts to preserve substantially intact its business organization, and there shall be no material changes in to keep available the conduct services of the operations current officers, employees and consultants of Parent and the Parent Subsidiaries and to preserve the current relationships of Parent and the Parent Subsidiaries with customers, suppliers and other persons with which Parent or any Parent Subsidiary;Subsidiary has significant business relations. By way of amplification and not limitation (but subject to the above exceptions), neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of the Company (such consent not to be unreasonably withheld):
(b) Parent shall not (i) sell amend or pledge otherwise change its STATUTS or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles Certificate of Incorporation or (KBIS), By-Laws; Laws or equivalent organizational documents;
(iiic) splitissue, combine or reclassify any shares of its outstanding capital stock or declaresell, set aside or pay any dividend or other distribution payable in cashpledge, stock or propertydispose of, grant, encumber, or redeem authorize the issuance, sale, pledge, disposition, grant or otherwise acquire encumbrance of, any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary (except for the issuance of (A) Parent Ordinary Shares pursuant to the Parent Stock Options outstanding on the date of this Agreement and the issuance, in the ordinary course of business and consistent with past practices; practice, of Parent Stock Options to purchase a maximum of 500,000 Parent Ordinary Shares pursuant to the Parent Stock Option Plans in effect on the date of this Agreement and Parent Ordinary Shares issuable pursuant to such Parent Stock Options, in accordance with the terms of the Parent Stock Option Plans, (iiiB) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary Ordinary Shares in the ordinary course of business and consistent with past practices; practice pursuant to the Parent's Employee Stock Purchase Plan as in existence at the Effective Time, (C) Parent Ordinary Shares upon conversion at the option of the holders of Parent OCEANES pursuant to their terms, or (ivD) enter into securities of Parent Subsidiaries for internal restructurings solely involving Parent and/or direct or indirect wholly owned Parent Subsidiaries);
(d) declare, set aside, make or pay any contractdividend or other distribution, agreementpayable in cash, commitment stock, property or arrangement otherwise, with respect to any of the foregoingits capital stock, other than dividends declared and paid in accordance with past practice and dividends from a direct or indirect wholly-owned Parent Subsidiary to Parent or any Parent Subsidiary;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither reclassify, combine, split or subdivide any of its capital stock;
(f) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice and any change required by reason of a concurrent change in GAAP or Regulation S-X under the Exchange Act, with respect to accounting policies or procedures;
(g) sell, lease, license or otherwise dispose of any material assets, except in the ordinary course of business and in a manner consistent with past practice (except for internal restructurings solely involving Parent nor and/or direct or indirect wholly-owned Parent Subsidiaries);
(h) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets, but not including internal restructurings solely involving Parent and/or direct or indirect wholly-owned Parent Subsidiaries) any interest in any corporation, partnership or other business organization or any division thereof, or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice and any other acquisitions for consideration which is not, in the aggregate, in excess of $50 million;
(i) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except for (A) indebtedness incurred in the ordinary course of business and consistent with past practice and other indebtedness with a maturity of not more than one year in a principal amount not, in the aggregate, in excess of $100 million or (B) any indebtedness solely involving Parent and/or direct or indirect wholly-owned Parent Subsidiaries; or
(j) agree or commit to do any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, except as set forth in Section 4.03 of the Parent Disclosure Schedule or unless the Company shall otherwise agree in writing, or as otherwise contemplated by this Agreement or the Parent Disclosure Letter:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(bi) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of conduct its business, and cause the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares businesses of its outstanding capital stock or declaresubsidiaries to be conducted, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; practice, including actions taken by Parent or its subsidiaries in contemplation of the Merger, and (iiiii) assumeParent shall not directly or indirectly do, guaranteeor propose to do, endorse any of the following without the prior written consent of the Company:
(a) amend or otherwise become liable change Parent's Charter Documents;
(b) acquire or responsible (whether directlyagree to acquire, contingently by merging or otherwise) for consolidating with, by purchasing an equity interest in or a portion of the obligations assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person person, or dispose of any assets, which, in any such case, would materially delay or prevent the consummation of the Merger and the other than transactions contemplated by this Agreement;
(c) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary of Parent Subsidiary in may declare and pay a dividend to its parent, and except that Parent may declare and pay quarterly cash dividends on the ordinary course Parent Common Shares of business and $0.025 per share consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingpractice;
(d) Parent shall use reasonable efforts take any action to preserve intact change its accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable), except as required by a change in GAAP occurring after the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiariesdate hereof; andor
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow agree in writing or otherwise to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification make any of the Merger as a reorganization within the meaning representations or warranties of section 368(a) of the CodeParent contained in this Agreement untrue or incorrect or prevent Parent from performing or cause Parent not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Raychem Corp)
Conduct of Business by Parent Pending the Merger. From Except as otherwise contemplated by this Agreement, or as specifically set forth in Section 5.03 of the Parent Disclosure Letter, during the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Company Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following, except to the extent that each of Pihana and i-STT shall otherwise agree consent in writing, which consent, with respect to Sections 5.03(e), (j), (k), (n), and (o) (and with respect to such clauses to the extent covered by Section 5.03(p)), shall not be unreasonably withheld, conditioned or as otherwise contemplated by this Agreement or the Parent Disclosure Letterdelayed:
(a) the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend dividends on or make any other distribution payable distributions in cashcash or property in respect of any capital stock;
(b) cause, stock permit or propertypropose any amendments to its certificate of incorporation or bylaws or equivalent organizational documents (or similar governing instruments of any of its subsidiaries), except as contemplated by this Agreement;
(c) issue, sell, pledge, dispose of, grant, encumber, authorize or redeem propose the issuance, sale, pledge, disposition, grant or otherwise acquire encumbrance of any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement;
(d) take any action, with respect to accounting policies, principles or procedures, except as required by any Governmental Entity or a change in GAAP;
(e) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets, except in the ordinary course of business, consistent with past practice;
(f) except as contemplated by this Agreement, split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any class (whether through the issuance other securities in respect of, in lieu of or granting in substitution for shares of optionsits capital stock, warrants, commitments, subscriptions, rights to or purchase or otherwise)otherwise acquire, except for unissued directly or indirectly, any shares of Parent Common Stock reserved its capital stock except from former employees, directors and consultants in accordance with agreements providing for issuance upon the exercise repurchase of Parent Employee Stock Optionsshares in connection with any termination of service by such party;
(g) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) all or substantially all of the assets of, or any equity interest (iiexcept in compromise of bona fide claims) incurin, assume any corporation, partnership, or prepay other business organization;
(h) incur any indebtedness for borrowed money or issue any other debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances (except pursuant to non-material liabilities other than negotiable instruments presented in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the non-material surety and performance bonds and similar obligations of any other person other than a Parent Subsidiary entered into in the ordinary course of business and consistent with past practices; or business);
(ivi) enter into any lease or contract for the purchase or sale of any real property;
(j) increase, or agree to increase, the compensation payable, or to become payable, to its officers, or grant any severance or termination pay to, or enter into any employment or severance agreement with any of its directors, or officers, or establish, adopt, enter into or amend any material collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Parent Plan (as defined in Section 6.04(b)), agreement, trust, fund, policy or arrangement for the benefit of any director or officer; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by law;
(k) extend any offers of employment to potential executive officers or terminate any existing employment relationships with any key employee or executive officers, except pursuant to Parent Plans;
(l) amend any material contract, or enter into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.03;
(m) make (or become obligated to make) any bonus or severance payments to any of its executive officers other than with respect to Parent Plans;
(n) authorize any capital expenditure not included in its capital budget;
(o) take, or agree in writing or otherwise to take, any action outside the ordinary course of business that would result in a material change to Parent Working Capital; or
(p) agree in writing or otherwise to take any of the foregoing;
actions described in Section 5.03(a) through (do) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiariesabove, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize reasonably be expected to cause the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (iicondition in Section 7.03(b) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Codenot to be satisfied.
Appears in 1 contract
Samples: Combination Agreement (Equinix Inc)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Parent agrees to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be substantially identical at the Effective Time. Parent shall promptly notify the Company shall otherwise of any material event or occurrence not in the ordinary course of business of Parent. The Parent and the 46 Merger Sub agree to use their commercially reasonable best efforts to satisfy all conditions to the Closing set forth in writingArticle VIII and timely consummate the Merger contemplated herein. By way of amplification and not limitation, or except as otherwise specifically contemplated by this Agreement or as specifically set forth in Section 6.02 of the Parent Disclosure LetterSchedule, Parent shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent, which consent shall not be unreasonably withheld, of Company:
(a) amend or otherwise change the respective businesses Certificate of Parent Incorporation and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Bylaws or any Parent Subsidiaryequivalent organizational documents;
(b) except as it relates to the redemption or cancellation of Parent shall not (i) sell Common Stock pursuant to the Settlement Agreement, issue, sell, pledge, dispose of, grant, encumber, authorize or pledge propose the issuance, sale, pledge, disposition, grant or agree to sell or pledge any stock owned by it in any encumbrance of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement;
(c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business;
(d) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any class (whether through the issuance other securities in respect of, in lieu of or granting in substitution for shares of optionsits capital stock, warrants, commitments, subscriptions, rights to or purchase or otherwise)otherwise acquire, directly or indirectly, any shares of its equity interests except from former employees, managers, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party;
(e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof;
(f) except for unissued shares the Settlement Agreement, institute or settle any Legal Proceeding for an amount greater than $100,000;
(g) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of Parent Common Stock reserved any person, or make any loans or advances other than such indebtedness described herein;
(h) authorize any unbudgeted capital expenditure in excess of $100,000, individually or in the aggregate;
(i) enter into any lease or contract for issuance upon the exercise purchase or sale of Parent Employee Stock Optionsany property, real or personal, in an amount greater than $50,000 on an annual basis;
(j) waive or release any material right or claim;
(k) increase, or agree to increase, the compensation payable, or to become payable, to its (i) officers or (ii) incuremployees (provided that any employee’s annual compensation may be increased by an amount not to exceed 10% of such employee’s current annual base salary), assume or prepay grant any indebtedness severance or termination pay to, or enter into any employment or severance agreement with, any of its managers, officers or other employees or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law;
(l) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or stock options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any stock options granted under any of such plans, except as specifically required by the terms of such plans or any other material liabilities such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the Parent Disclosure Schedule; 47
(m) extend any offers of employment to potential employees, consultants or independent contractors or terminate any existing employment relationships for which the annual remuneration is greater than $200,000;
(n) enter into, amend or terminate any Material Contract to which it is a party;
(o) enter into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.02;
(p) other than in the ordinary course of business and consistent with past practices; practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations that may not be cancelled without penalties by Parent upon notice of 30 days or less;
(iiiq) assumetake any action, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary reasonable and usual action in the ordinary course of business and business, consistent with past practices; practice, with respect to accounting policies, principles or procedures;
(ivr) make or change any Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any contract, closing agreement, commitment settle any Tax claim or arrangement with respect assessment relating to Parent, surrender any right to claim refund of Taxes, consent to any extension or waiver of the foregoing;
(d) Parent shall use reasonable efforts limitation period applicable to preserve intact the business organization of Parent and the Parent Subsidiariesany Tax claim or assessment relating to Parent, or take any other action or omit to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification have the effect of increasing the Tax liability of Parent or the Company;
(s) make (or become obligated to make) any bonus payments to any of its officers or employees except as set forth on Schedule 6.02(s);
(t) except as permitted by GAAP, revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable;
(u) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, subject only to ordinary wear and tear, unless it is more commercially reasonable to replace any such asset in the ordinary course of Parent’s business;
(v) take any action or fail to take any reasonable action that would cause there to be a Parent Material Adverse Effect;
(w) permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated and not replaced by a substantially similar replacement policy without notice to the Company;
(x) amend, modify, terminate or otherwise change the PB Agreement or the GB Agreement;
(y) take, or agree in writing or otherwise to take, any of the actions described in subsections (a) through (x) above, or any action which is reasonably likely to make any of Parent’s or Merger Sub’s representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as a reorganization within the meaning of section 368(a) of the CodeEffective Time; and
(z) fail to timely file any Parent SEC Reports with the SEC.
Appears in 1 contract
Samples: Agreement and Plan of Merger (JK Acquisition Corp.)
Conduct of Business by Parent Pending the Merger. From During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Parent agrees to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be substantially identical at the Effective Time. Parent shall promptly notify the Company shall otherwise agree of any event or occurrence not in writingthe ordinary course of business of Parent. By way of amplification and not limitation, or except as otherwise specifically contemplated by this Agreement or as specifically set forth in Section 6.02 of the Parent Disclosure LetterSchedule, Parent shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent, which consent shall not be unreasonably withheld, of Company:
(a) amend or otherwise change the respective businesses Certificate of Parent Incorporation and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent Bylaws or any Parent Subsidiaryequivalent organizational documents;
(b) Parent shall not (i) sell issue, sell, pledge, dispose of, grant, encumber, authorize or pledge propose the issuance, sale, pledge, disposition, grant or agree to sell or pledge any stock owned by it in any encumbrance of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares ofclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement;
(c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business;
(d) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any class (whether through the issuance other securities in respect of, in lieu of or granting in substitution for shares of optionsits capital stock, warrants, commitments, subscriptions, rights to or purchase or otherwise)otherwise acquire, except for unissued directly or indirectly, any shares of Parent Common Stock reserved its equity interests except from former employees, managers, directors and consultants in accordance with agreements providing for issuance upon the exercise repurchase of Parent Employee Stock Optionsshares in connection with any termination of service by such party;
(e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof;
(f) institute or settle any Legal Proceeding for an amount greater than $100,000;
(g) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than such indebtedness described herein;
(h) authorize any unbudgeted capital expenditure in excess of $100,000, individually or in the aggregate;
(i) enter into any lease or contract for the purchase or sale of any property, real or personal, in an amount greater than $50,000 on an annual basis;
(j) waive or release any material right or claim;
(k) increase, or agree to increase, the compensation payable, or to become payable, to its (i) officers or (ii) incuremployees (provided that any employee’s annual compensation may be increased by an amount not to exceed 10% of such employee’s current annual base salary), assume or prepay grant any indebtedness severance or termination pay to, or enter into any employment or severance agreement with, any of its managers, officers or other employees, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law;
(l) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or stock options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any stock options granted under any of such plans, except as specifically required by the terms of such plans or any other material liabilities such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the Parent Disclosure Schedule;
(m) extend any offers of employment to potential employees, consultants or independent contractors or terminate any existing employment relationships for which the annual remuneration is greater than $200,000;
(n) enter into, amend or terminate any Material Contract to which it is a party;
(o) enter into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.02;
(p) other than in the ordinary course of business and consistent with past practices; practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations that may not be cancelled without penalties by Parent upon notice of 30 days or less;
(iiiq) assumetake any action, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary reasonable and usual action in the ordinary course of business and business, consistent with past practices; practice, with respect to accounting policies, principles or procedures;
(ivr) make or change any Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any contract, closing agreement, commitment settle any Tax claim or arrangement with respect assessment relating to Parent, surrender any right to claim refund of Taxes, consent to any extension or waiver of the foregoing;
(d) Parent shall use reasonable efforts limitation period applicable to preserve intact the business organization of Parent and the Parent Subsidiariesany Tax claim or assessment relating to Parent, or take any other action or omit to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification have the effect of increasing the Tax liability of Parent or the Company;
(s) make (or become obligated to make) any bonus payments to any of its officers or employees except as set forth on Schedule 6.02(s);
(t) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable;
(u) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, subject only to ordinary wear and tear, unless it is more commercially reasonable to replace any such asset in the ordinary course of Parent’s business;
(v) take any action or fail to take any reasonable action that would cause there to be a Parent Material Adverse Effect;
(w) permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated and not replaced by a substantially similar replacement policy without notice to the Company; and
(x) take, or agree in writing or otherwise to take, any of the actions described in subsections (a) through (w) above, or any action which is reasonably likely to make any of Parent’s or Merger Sub’s representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as a reorganization within the meaning of section 368(a) of the Code.Effective Time
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to hereof and the Effective Time, unless Company shall otherwise agree in writing, except as expressly required or as otherwise contemplated permitted by this Agreement or as set forth in Section 4.2 of the Parent Disclosure Letter:Schedule, or unless the Company shall otherwise consent in writing in advance (which consent shall not be unreasonably withheld or delayed), Parent shall conduct and shall cause the businesses of each of its Subsidiaries to be conducted only in, and Parent and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in compliance with applicable Laws. Parent shall use its reasonable best efforts to preserve intact the business organization and properties, rights and assets of Parent and each of its Subsidiaries. By way of amplification and not limitation, except as set forth in Section 4.2 of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries shall, between the date hereof and the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed):
(a) amend or otherwise change the respective businesses Certificate of Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations Incorporation or Bylaws or equivalent organizational document of Parent or any of its Subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of Parent Subsidiaryor any of its Subsidiaries;
(b) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, any shares of capital stock of any class (common or preferred), or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of capital stock or any other ownership interest of Parent shall not or any of its Subsidiaries (i) sell except for the issuance of Parent Stock Options covering up to 320,000 shares of Parent Common Stock and the issuance of Parent Common Stock issuable pursuant to the Parent Stock Options, in each case pursuant to the Parent’s Option Plans); adopt, ratify or pledge effectuate a stockholders’ rights plan or agree to sell agreement; or pledge any stock owned by it in redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of Parent Subsidiaries; (ii) amend its Articles or interest in or securities of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or Subsidiaries;
(c) declare, set aside or pay any dividend or other distribution payable (whether in cash, stock or propertyproperty or any combination thereof) in respect of any of its capital stock (except that a wholly owned Subsidiary of Parent may declare and pay a dividend to its parent); split, combine or reclassify any of its capital stock, or redeem issue or otherwise acquire authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock stock; or shares of amend the capital stock of terms of, repurchase, redeem or otherwise acquire, or permit any of the Parent Subsidiaries;
(c) neither Parent nor its Subsidiary to repurchase, redeem or otherwise acquire, any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness securities or any other material liabilities other than in the ordinary course securities of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practicesits Subsidiaries; or (iv) enter into any contract, agreement, commitment or arrangement with respect propose to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact sell, transfer, assign, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or subject any Lien on, any of the business organization properties, rights or assets of Parent and the Parent Subsidiaries, to keep available the services or any of its Subsidiaries (including any Intellectual Property) with a fair market value in excess of $50,000,000 in the aggregate, except for the sale of goods, non-exclusive licenses of Intellectual Property and their present officers dispositions of other immaterial assets, in each case which are made in the ordinary course of business and key employees, and to preserve the goodwill of those having business relationships in a manner consistent with it and the Parent Subsidiaries; andpast practice;
(e) neither acquire (by merger, consolidation, acquisition of stock or assets or otherwise), organize or acquire any assets or portfolios, including alarm monitoring Contracts, of any corporation, limited liability company, partnership, joint venture, trust or other entity or any business organization or division thereof, for consideration with a fair market value in excess of $50,000,000 in the aggregate; or incur any indebtedness for borrowed money or issue any debt securities or any warrants or rights to acquire any debt security or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any Person, in excess of $50,000,000 in the aggregate (other than the refinancing of any existing indebtedness of Parent nor any of the Parent Subsidiaries shall or its Subsidiaries);
(if) knowingly take, agree to take or allow fail to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that (without regard to any action taken, or agreed to be taken, by the Company or any of its Subsidiaries) would jeopardize qualification of prevent the Merger from qualifying as a reorganization within the meaning of section Section 368(a) of the Code; or
(g) authorize, recommend, propose or announce an intention to do any of the foregoing, or agree or enter into or amend any Contract or arrangement to do any of the foregoing.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, during the date of this Agreement to the Effective TimeInterim Period, unless Company shall otherwise agree in writing, except as expressly provided or as otherwise contemplated permitted by this Agreement or set forth in Section 4.2 of the Parent Disclosure Letter:Schedule or unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in the ordinary course. Except as expressly provided or permitted by this Agreement or as set forth in Section 4.2 of the Parent Disclosure Schedule, during the Interim Period, Parent shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of the Company (which consent shall not, in the case of any matter described in clauses (e) or (i) and, to the extent relating to such clauses, clause (k), be unreasonably withheld, conditioned or delayed):
(a) amend their Articles of Association, Bylaws or other equivalent organizational documents other than with respect to the respective businesses issue of shares out of contingent capital (bedingtes Kapital) or the issue of new Parent and the Parent Subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct Ordinary Shares out of the operations Authorized Capital for purposes of Parent or any Parent Subsidiarya milestone payment pursuant to Section 7.4 of that certain License Agreement dated January 6, 2006, between Evotec Neurosciences GmbH and Xxxxxxx-Xx Xxxxx Ltd.;
(b) Parent shall not (i) sell redeem, repurchase or pledge otherwise acquire, directly or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) splitindirectly, combine or reclassify any shares of its outstanding capital stock or other securities or equity interests of Parent or any equity interest in or securities of any of its Subsidiaries;
(c) declare, set aside or pay any dividend or other distribution payable (whether in cash, stock or other securities or property, or redeem any combination thereof) in respect of any of its capital stock or otherwise acquire other equity interests;
(d) split, combine or reclassify any shares of its capital stock or other securities or equity interests, or issue any other securities in respect of, in lieu of or in substitution for shares of the its capital stock or equity interests;
(e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) an interest in any corporation, limited liability company, partnership, joint venture or other business organization or division thereof provided this shall not prevent Parent or its Subsidiaries from investing its cash and cash equivalents in investments consistent with its investment policy as disclosed to the Company prior to the date hereof;
(f) other than pursuant to Parent’s option and incentive plans, issue any bonds, debentures, notes or other evidences of indebtedness, or any warrants, shares or any other securities convertible into, exercisable for or exchangeable for shares of capital stock or other securities or equity interests of Parent or any of the Parent its Subsidiaries;
(cg) neither Parent nor materially change any accounting policies or procedures (including procedures with respect to reserves, revenue recognition, payments of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights accounts payable and collection of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwiseaccounts receivable), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Optionsunless required by statutory accounting principles or IFRS;
(h) pay, (ii) incurdischarge, assume satisfy or prepay settle any indebtedness material litigation or waive, assign or release any other material liabilities rights or claims with respect thereto, other than settlements in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person requiring no obligation other than a Parent Subsidiary the payment of cash not in excess of $500,000 in the ordinary course of business aggregate and consistent no admission being made with past practices; respect to (A) any criminal wrongdoing or (ivB) the invalidity or unenforceability of, or any infringement with respect to, any Parent Intellectual Property Rights;
(i) fail to maintain in full force and effect all material insurance policies currently in effect, or permit any of the coverage thereunder to lapse, in each case, without simultaneously securing replacement insurance policies which will be in full force and effect and provide coverage substantially similar to or greater than under the prior insurance policies; or
(j) enter into any contract, agreement, commitment agreement or arrangement with respect contract to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Renovis Inc)
Conduct of Business by Parent Pending the Merger. From the date of this Agreement Prior to the Effective Time, unless the Company shall otherwise agree in writing, or as otherwise expressly contemplated by this Agreement or the Parent Disclosure LetterAgreement:
(a) the respective businesses of Parent and the Parent its Subsidiaries shall be conducted conduct their business only in the ordinary and usual course of business and consistent with past practicespractice, and there Parent and its Subsidiaries shall be no material changes in use their reasonable efforts to preserve intact the conduct present business organization, keep available the services of its present officers and key employees and preserve the operations goodwill of Parent or any Parent Subsidiarythose having business relationships with them;
(b) neither Parent nor Sub shall not (i) sell amend its Certificate of Incorporation, By-Laws or pledge other organizational documents other than to the extent required to comply with applicable law or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; Parent's obligations hereunder, (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or (iii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent its Subsidiaries shall (i) authorize for issuance, issue make any material change in its accounting policies or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingprocedures;
(d) neither Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services nor any of its and their present officers and key employees, and Subsidiaries shall take any action that is intended or would reasonably be expected to preserve result in any of the goodwill of those having business relationships with it and the Parent Subsidiaries; andconditions set forth in Article VIII not being satisfied;
(e) neither Parent nor any of the Parent Subsidiaries Sub shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that which would jeopardize qualification of the Merger as a reorganization within the meaning of section Section 368(a) of the Code.; and
(f) Parent shall not, directly or indirectly, acquire or agree to acquire from any person any assets, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination or series of such transactions (whether related or unrelated) with any person or persons, which, individually or in the aggregate, would require Parent to file financial statements with respect to such acquired person or persons (or business or businesses) pursuant to Item 7 of Form 8-K (an unrelated series of transactions being deemed related for this purpose); provided that for purposes of this Section 6.2(f), 20% shall be substituted for all other percentages contained in the rules or instructions governing whether the filing of such financial statements is required and an unrelated series of transactions will be deemed to be related for purposes of Item 2 and Item 7 of Form 8-K.
Appears in 1 contract
Samples: Merger Agreement (Andrew Corp)
Conduct of Business by Parent Pending the Merger. From (a) Parent covenants and agrees that, between the date of this Agreement and the earliest to occur of the Effective TimeTime and the date, unless Company shall otherwise agree in writingif any, or as otherwise contemplated by on which this Agreement is terminated pursuant to Section 8.1, except (1) as required by applicable Law or (2) as with the Parent Disclosure Letter:
prior written consent of the Company (awhich consent shall not be unreasonably withheld, conditioned or delayed): (A) the respective businesses business of Parent and the Parent its Subsidiaries shall be conducted only in all material respects in the ordinary Ordinary Course of Business, (B) Parent shall use commercially reasonable efforts to preserve intact its existence and usual course business organization, keep available the services of its employees and to preserve the goodwill and present relationships (contractual or otherwise) with all customers, suppliers, resellers, retailers, distributors, employees, licensors and others having significant business and consistent dealings with past practices, and there shall be no material changes in the conduct of the operations of Parent or any of its Subsidiaries, (C) Parent Subsidiary;
shall use commercially reasonable efforts to maintain its listing status and (bD) Parent shall not and shall not permit any of its Subsidiaries to:
(i) sell or pledge or agree to sell or pledge any stock owned by it amend in any material respect its Governing Documents;
(ii) transfer, propose, authorize, issue, sell, pledge, purchase, redeem, retire, dispose of, encumber or grant any shares of capital stock of Parent, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of capital stock of Parent, other than in the Ordinary Course of Business, including in connection with the grant, exercise, vesting or settlement of awards under the Parent Equity Plan, in each case, in accordance with the terms of the Parent SubsidiariesEquity Plan and such awards;
(iii) (i) declare, set aside, authorize, make or pay any dividend or other distribution with respect to Parent’s capital stock, other than dividends paid by any wholly owned Subsidiary of Parent to Parent or any wholly owned Subsidiary of Parent; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declareother equity interests of Parent; or (iii) redeem, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem purchase or otherwise acquire any shares of its Parent’s capital stock stock, other than in the Ordinary Course of Business in connection with the exercise, vesting or shares settlement of awards under the Parent Equity Plan, in each case, in accordance with the terms of the capital stock Parent Equity Plan and such awards;
(iv) sell, assign, transfer, convey, encumber, license, permit to expire or lapse, abandon or otherwise dispose of, or mortgage, pledge or subject to any Lien (other than Permitted Liens), any material asset or property of Parent other than, in each case, in the Ordinary Course of Business or for the purpose of disposing of obsolete or worthless assets;
(v) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company; or
(vi) agree, commit, or enter into any Contract to do any of the foregoing.
(b) Parent Subsidiariescovenants and agrees that, between the date of this Agreement and the earliest to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except to the extent prohibited by applicable Law, senior management members of Parent shall consult with the Company and shall consider in good faith all advice and recommendations of the Company prior to Parent or its Subsidiaries taking any of the following actions:
(i) acquiring by merging or consolidating with, or by purchasing a material portion of the equity interests of or a substantial portion of the assets of, any business or any corporation, partnership or other business organization;
(cii) neither Parent nor incurring any of the Parent Subsidiaries shall (i) authorize for issuanceIndebtedness, guaranty any Indebtedness, issue or sell any additional shares of, debt securities or warrants or rights of any kind to acquire any shares ofdebt securities of the Company or its Subsidiaries or guarantee any debt securities of others, its capital stock other than (i) in the Ordinary Course of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, Business and (ii) incurthe Debt Financing;
(iii) hiring or terminating the employment of any “c-suite” level employee, assume other than terminations for cause; or prepay entering into any indebtedness employment or other compensation agreement or other similar Contract with any other material liabilities “c-suite” level employee;
(iv) other than in the ordinary course Ordinary Course of business and consistent with past practices; (iii) assumeBusiness, guaranteegranting or awarding any options, endorse convertible securities, restricted shares, restricted stock units or otherwise become liable other rights to acquire any share capital of or responsible (whether directlyother equity or equity-based interests in Parent or any of its Subsidiaries, contingently or otherwise) for the obligations of any other person other than a grants or awards of Parent Subsidiary in the ordinary course of business and consistent with past practicesOptions as may be required or contemplated under any employee benefit plan maintained by Parent; or
(v) agreeing, committing, or (iv) enter entering into any contract, agreement, commitment or arrangement with respect Contract to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by Parent Pending the Merger. From the date of this Agreement to and until the Effective Time, unless Company shall otherwise agree in writing, or as otherwise contemplated by earlier of the Closing Date and the date on which this Agreement or is terminated pursuant to Section 9.01, except as set forth in Section 6.02 of the Parent Disclosure Letter:
, as contemplated or required by this Agreement, the other Transaction Documents or applicable Law, and except as TDCC shall otherwise consent to in writing (such consent not to be unreasonably withheld, delayed or conditioned), (a) the respective Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to (i) conduct its and their businesses of Parent and the Parent Subsidiaries shall be conducted only in the ordinary course in all material respects; and usual course (ii) preserve intact in all material respects the business organization of business their businesses; and consistent with past practices, and there shall be no material changes in the conduct of the operations of Parent or any Parent Subsidiary;
(b) Parent shall not, and shall cause its Subsidiaries not to:
(i) sell or (A) issue, sell, pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiariesdispose of; (iiB) amend its Articles of Incorporation grant an Encumbrance on or By-Lawspermit an Encumbrance to exist on; or (iiiC) splitauthorize the issuance, combine sale, pledge or reclassify disposition of, or granting or placing of an Encumbrance on, any shares of its outstanding any class of capital stock or declarestock, set aside or pay any dividend or other distribution payable in cashownership interests, stock of Parent or propertyany of its Subsidiaries, or redeem any options, warrants, convertible securities or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest) of Parent or any of its Subsidiaries, other than, as applicable, (1) any such transaction by a directly or indirectly wholly-owned Subsidiary of Parent which remains a directly or indirectly wholly-owned Subsidiary of Parent after consummation of such transaction; (2) upon the exercise or settlement of, or as otherwise required by, any Parent Stock Awards granted pursuant to the Parent Stock Plans outstanding on the date of this Agreement and in accordance with their terms in effect on the date of this Agreement or thereafter granted in the ordinary course of business; (3) upon the acquisition of Parent Stock Equivalents by participants in the Parent Deferral Plans in accordance with their terms; (4) pursuant to the Parent 401(k) Plan in accordance with its terms; or (5) pursuant to the Parent Share Issuance;
(ii) (A) sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the businesses of Parent and its Subsidiaries, except (1) in the ordinary course of business and consistent with past practice; (2) dispositions of obsolete or worn-out assets that are no longer used or useful in the operation or conduct of the business of Parent or its Subsidiaries; (3) Encumbrances that are Permitted Encumbrances; and (4) Encumbrances securing indebtedness that would not be prohibited by Section 6.02(b)(xii);
(iii) amend or restate the certificate of incorporation or bylaws (or similar organizational documents) of Parent or any of its Subsidiaries, except for the Parent Charter Amendment;
(iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares (A) the declaration and payment of regular quarterly cash dividends not in excess of $0.20 per share of Parent Common Stock reserved for issuance upon the exercise Stock; and (B) dividends or distributions by any directly or indirectly wholly-owned Subsidiary of Parent Employee Stock OptionsParent;
(v) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(iivi) incur(A) acquire or dispose of (including by merger, assume consolidation or prepay any indebtedness acquisition of stock or assets or any other material liabilities business combination) any corporation, partnership, other business organization or any division thereof; or (B) make any loans or advances or capital contribution to, or investment in, any Person other than Parent or a Subsidiary of Parent;
(vii) (A) grant any increase in the base salaries, target bonus opportunity, or other benefits payable by Parent or its Subsidiaries to any of its employees; (B) adopt, terminate, accelerate the timing of payments or vesting under, or otherwise materially amend or supplement, any Parent Plans; or (C) enter into or amend any employment, consulting, change in control, retention, severance or termination agreement with any Parent Employee, in each case, other than (1) as required by Law; (2) as required by any Parent Plan or Parent Employee Representative Agreement, each as in effect on the date hereof; (3) as permitted by Section 6.02(b)(i); (4) in the ordinary course of business consistent with the past practices of Parent or its Subsidiaries (including in the context of new hires or promotions based on job performance or workplace requirements); or (5) to the extent undertaken in connection with the implementation of a program that affects all similarly situated employees of Parent and/or its Subsidiaries;
(viii) terminate, discontinue, close or dispose of any plant, facility or other business operation, or lay off any employees (other than layoffs of less than 50 employees at any individual location in any six (6) month period in the ordinary course of business consistent with past practice);
(ix) change any method of accounting or accounting practice or policy used by Parent as it relates to the businesses of Parent and its Subsidiaries, other than such changes as are required by GAAP or a Governmental Authority;
(x) other than in the ordinary course of business and consistent with past practicespractice, (A) make any change (or file any such change) in any method of Tax accounting; (iiiB) assumemake, guaranteechange or rescind any Tax election; (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes; (D) file any amended Tax Return or claim for refund; (E) enter into any closing agreement relating to Taxes; or (F) waive or extend the statute of limitations in respect of Taxes; in each case, endorse to the extent that doing so could reasonably be expected to result in a material incremental cost to Parent or otherwise become liable any of its Subsidiaries;
(xi) pay, discharge or responsible satisfy any claim, liability or obligation (whether directlyabsolute, contingently accrued, asserted or unasserted, contingent or otherwise) for the obligations of any other person ), other than a Parent Subsidiary the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practicespractice, of liabilities reflected or reserved against in the financial statements set forth in the Parent SEC Documents or incurred in the ordinary course of business and consistent with past practice;
(xii) incur, guarantee or assume or otherwise become responsible for any indebtedness for borrowed money other than (A) indebtedness incurred under Parent’s current credit facilities; (B) indebtedness solely between or among Parent and its Subsidiaries; (C) refinancing, replacements, extensions and renewals of existing indebtedness entered into in the ordinary course of business consistent with past practice; (D) indebtedness in an aggregate principal amount not to exceed $50 million incurred to finance acquisitions that would otherwise be permitted under this Section 6.02(b); (E) indebtedness incurred in connection with the transactions contemplated hereby; and (F) letters of credit or similar arrangements entered into in the ordinary course of business consistent with past practice;
(xiii) commence or settle any Action other than in the ordinary course of business and consistent with past practice;
(xiv) other than in the ordinary course of business and consistent with past practice, enter into, extend, materially amend, cancel or terminate any Environmental Permit, order or decree under Environmental Law, or any Parent Material Contract;
(xv) (A) abandon, disclaim, sell, assign or grant any security interest in, to or under any material Parent Intellectual Property, including failing to perform or cause to be performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in any material Parent Intellectual Property; or (ivB) grant to any third party any license, or enter into any contractcovenant not to sxx, agreement, commitment or arrangement with respect to any material Parent Intellectual Property, except in the ordinary course of business and consistent with past practice;
(xvi) fail to exercise any rights of renewal with respect to any material Parent Leased Real Property that by its terms would otherwise expire unless Parent (or, if the lessee is a Subsidiary of Parent, such Subsidiary) determines in good faith that a renewal would not be in the best interests of Parent;
(xvii) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(xviii) fail to maintain (with insurance companies substantially as financially responsible as its existing insurers) insurance in at least such amounts and against at least such risks and losses as are consistent in all material respects with the past practice of the businesses of Parent and its Subsidiaries; or
(xix) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall (i) knowingly take or allow to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Olin Corp)
Conduct of Business by Parent Pending the Merger. From Parent covenants and agrees that, between the date of this Agreement to and the earlier of the Effective TimeTime and the date, unless if any, on which this Agreement is terminated in accordance with Section 7.1, except (i) as may be required by Law, (ii) as may be consented to in writing by the Company (which consent shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (iii) as otherwise may be expressly contemplated by or required pursuant to this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Letter:, (A) Parent shall, and shall cause its Subsidiaries to, conduct the business of Parent and its Subsidiaries in the ordinary course of business in all material respects and, to the extent consistent therewith, use commercially reasonable efforts to preserve its material assets and business organization and maintain its existing relationships with material customers, suppliers, distributors, regulators and business partners and (B) Parent shall not, and shall cause its Subsidiaries not to, directly or indirectly (it being understood that if any action is permitted by any of the following sub-sections of this Section 5.2, such action shall be deemed permitted pursuant to Section 5.2(A)):
(a) amend the respective businesses Parent Organizational Documents in a manner that would be disproportionately (relative to other holders of Parent and Common Stock) adverse to the Parent Subsidiaries shall be conducted only in Company or the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct shareholders of the operations Company or would, or would reasonably be expected to, prevent, impede or delay the consummation of Parent any of the Merger or any Parent Subsidiarythe other transactions contemplated by this Agreement;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine reverse split, combine, subdivide, reclassify, redeem, repurchase or reclassify any shares of its outstanding otherwise acquire Parent’s capital stock or declareother equity or voting securities, set aside or pay any dividend options, warrants, convertible securities or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its of Parent’s capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase other equity or otherwise), except for unissued shares of voting securities; provided that Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Parent Subsidiary in the ordinary course of business and consistent with past practices; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use reasonable efforts to preserve intact the business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; and
(e) neither Parent nor any of the Parent Subsidiaries shall may (i) knowingly take or allow for up to be taken any action which would jeopardize five (5) Business Days from the treatment date hereof, repurchase up to an aggregate of Parent's acquisition $10 million of Company as a pooling of interests for accounting purposes; or (ii) knowingly take any action that would jeopardize qualification of the Merger as a reorganization within the meaning of section 368(a) of the Code.Parent shares through open market repurchases subject to compliance with applicable Laws and
Appears in 1 contract
Samples: Merger Agreement (International Flavors & Fragrances Inc)
Conduct of Business by Parent Pending the Merger. From Except as expressly contemplated by any other provision of this Agreement, Parent agrees that from the date of this Agreement to until the earlier of the termination of this Agreement and the Effective Time, unless Company Parent shall otherwise agree not except as disclosed in writing, or as otherwise contemplated by this Agreement or Section 5.02 of the Parent Disclosure LetterSchedule, directly or indirectly, do, or propose to do, any of the following without the prior written consent of the Company:
(a) conduct the respective businesses of Parent and the Parent Subsidiaries shall be conducted only in a manner, or take any action with respect to the ordinary and usual course of business and consistent with past practices, and there shall be no material changes in the conduct of the operations businesses of Parent or any Parent Subsidiary;
(b) Parent shall and the Subsidiaries, that is not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of the Parent Subsidiaries; (ii) amend its Articles of Incorporation or By-Laws; or (iii) split, combine or reclassify any shares of its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or redeem or otherwise acquire any shares of its capital stock or shares of the capital stock of any of the Parent Subsidiaries;
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize for issuance, issue or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for unissued shares of Parent Common Stock reserved for issuance upon the exercise of Parent Employee Stock Options, (ii) incur, assume or prepay any indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practices; practice or that would cause Parent to be in default of the Amended and Restated Accounts Receivable Management, Loan and Security Agreement between GMAC Commercial Finance Corporation – Canada and Parent (iii) assumeas in effect on the date hereof, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations irrespective of any other person other than a subsequent waiver or amendment);
(b) change nor amend the charter documents or By-laws of Parent;
(c) issue, sell, or grant any shares of capital stock (except Parent Subsidiary in Common Stock issued upon exercise of options outstanding on the ordinary course date of business and consistent with past practices; the Agreement), or (iv) any options, warrants, or rights to purchase or subscribe to, or enter into any contract, agreement, commitment arrangement or arrangement contract with respect to the issuance or sale of, any of the capital stock of Parent or any Subsidiary or rights or obligations convertible into or exchangeable for any such shares of capital stock;
(d) split, combine or reclassify any of its capital stock or otherwise make any changes in the capital structure of Parent;
(e) declare, pay, or set aside for payment any dividend or other distribution in respect of the capital stock or other equity securities of Parent or any Subsidiary or redeem, purchase, or otherwise acquire any shares of the capital stock or other securities of Parent or any Subsidiary or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any Subsidiary or obligations convertible into such, or any options, warrants, or other rights to purchase or subscribe to any of the foregoing;
(di) except for normal increases made in the ordinary course of business consistent with past practice, or as required by applicable Law or an agreement in existence as of the date of this Agreement, increase the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any officer, employee, or director of Parent shall use reasonable efforts or any Subsidiary or pay any benefit not contemplated by any Plan as in effect on the date hereof, (ii) pay any pension or retirement allowance not required by any existing Plan or by applicable Law, (iii) except for bonuses paid in the ordinary course of business consistent with past practice, or as required by an agreement in existence as of the date of this Agreement, pay any bonus, (iv) except for agreements entered or amended in the ordinary course of business consistent with past practice, become a party to, amend or commit itself to, any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment, consulting, indemnification, severance or termination agreement with or for the benefit of any employee, other than as required by applicable law or an existing agreement set forth in Section 4.12(a) of the Parent Disclosure Schedule, or (v) except as required under any existing Plan, grant, or agreement, accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options granted pursuant to preserve intact any Parent Stock Option Plan or any other Parent stock-based awards;
(g) sell, license, lease, encumber, assign or otherwise dispose of, abandon or fail to maintain any of its material assets, properties (including Intellectual Property) or other rights or agreements other than in the ordinary course of business consistent with past practice;
(h) enter into any new line of business;
(i) acquire or agree to 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 or any corporation, partnership, association or other business organization of Parent and the Parent Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and the Parent Subsidiaries; andor division thereof;
(ej) neither create, renew, amend or terminate, fail to perform any material obligations under, waive or release any material rights under or give notice of a proposed renewal, amendment, waiver, release or termination of, any material contract, agreement or lease for goods, services or office space to which Parent nor or any of the Subsidiaries is a party or by which Parent or any of the Subsidiaries or their respective properties is bound, other than any of the foregoing arising in the ordinary course of business (and as to which Parent shall provide prior notice thereof to the Company);
(i) knowingly take cause any material insurance policy naming it as a beneficiary or allow a loss payable payee to be taken any action which would jeopardize the treatment of Parent's acquisition of Company as a pooling of interests for accounting purposes; canceled or terminated, or (ii) knowingly cause Parent’s directors and officers liability insurance policy, and any excess liability policy related thereto, to be canceled, terminated or otherwise not be renewed or replaced with at least an equivalent amount of coverage and on other terms no less favorable to Parent and its officers and directors;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries;
(m) make any material election relating to Taxes or change any Tax accounting method, or settle any material liability relating to Taxes (other than in the ordinary course of business);
(n) engage in any action that could reasonably be expected to cause the Merger (i) to fail to qualify as a “reorganization” under Section 368(a) of the Code or (ii) to result in the application of Section 367(a)(1) of the Code to any person other than a five-percent transferee shareholder;
(o) take any action to cause Parent’s representations and warranties set forth in Article IV to be untrue in any material respect;
(p) take any action that would jeopardize qualification reasonably be likely to materially delay the Merger; or
(q) agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the Merger as a reorganization within the meaning of section 368(a) of the Codeforegoing actions.
Appears in 1 contract
