Conduct of Business by the Corporation. (a) The Corporation covenants and agrees that, during the period from the date of this Agreement until the earlier of the time of appointment or election to the Board of Directors designated by the Offeror who represent a majority of the directors of the Corporation and the time that this Agreement is terminated in accordance with its terms, unless the Offeror shall otherwise agree in writing, such agreement not to be unreasonably withheld or delayed, or as is otherwise expressly permitted or specifically contemplated by this Agreement or the Offer: (i) the business of the Corporation and its subsidiaries shall be conducted only, and the Corporation and its subsidiaries shall not take any action except, in the usual and ordinary course of business consistent with past practice and in compliance with all applicable Laws, and the Corporation shall use all commercially reasonable efforts to maintain and preserve its and its subsidiaries’ business organization, assets, employees, goodwill and business relationships; (ii) the Corporation shall not, and shall not permit any of its subsidiaries to, directly or indirectly: (A) amend its articles, charter or by-laws or other comparable organizational documents; (B) split, consolidate or reclassify any of its outstanding shares nor undertake any other capital reorganization; (C) declare, set aside or pay any dividend or other distribution or payment (whether in cash, shares or property) in respect of the Shares owned by any person or the securities of any subsidiary owned by a person other than the Corporation other than, in the case of any subsidiary wholly-owned by the Corporation, any dividends payable to the Corporation or any other wholly-owned subsidiary of the Corporation; (D) issue, grant, sell, pledge or otherwise encumber or agree to issue, grant, sell, pledge or otherwise encumber any shares of the Corporation or its subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Corporation or its subsidiaries, other than (1) the issuance of Shares issuable pursuant to the terms of the outstanding Options and Warrants, and (2) transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; (E) redeem, purchase or otherwise acquire any of its outstanding securities, unless otherwise required by the terms of such securities, and other than in transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; (F) amend the terms of any of its securities; (G) adopt a plan of liquidation or resolution providing for the liquidation or dissolution of the Corporation or any of its subsidiaries; (H) amend its accounting policies or adopt new accounting policies, in each case except as required in accordance with GAAP; (I) make any material Tax election or settle or compromise any material Tax liability; or (J) enter into, modify or terminate any Material Contract with respect to any of the foregoing; (iii) the Corporation shall promptly (and in any event within 24 hours) notify the Offeror orally and promptly in writing of any material change as defined in the Securities Act; and any circumstance or development that is or would, individually or in the aggregate, reasonably be expected to constitute a Material Adverse Effect, provided that the foregoing, shall not apply to any Acquisition Proposal; (iv) the Corporation shall not, and shall not permit any of its subsidiaries to, directly or indirectly: (A) sell, pledge, lease, dispose of or encumber any material assets of the Corporation or of any subsidiary; (B) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or make any investment either by the purchase of securities, contributions of capital (other than to wholly-owned subsidiaries), property transfer, or purchase of any material property or assets of any other person; (C) incur any indebtedness for borrowed money or any other liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other person other than a subsidiary of the Corporation, or make any loans or advances except for refinancing of existing debt on substantially the same or more favourable terms; (D) pay, discharge or satisfy any material claims, liabilities or obligations other than the payment, discharge or satisfaction of liabilities reflected or reserved against the Corporation financial statements or payments in the ordinary course of business; (E) authorize, recommend or propose any release or relinquishment of any contractual right, other than in the ordinary course of business; (F) waive, release, grant or transfer any rights of material value; or (G) authorize or propose any of the foregoing, or enter into or modify any contract to do any of the foregoing; (v) other than as is necessary to comply with any existing contract, Corporation Plan or agreement with any officer or director or former officer or director, neither the Corporation nor any of its subsidiaries shall (A) grant to any officer or director of the Corporation or any of its subsidiaries an increase in compensation in any form, (B) grant any general salary increase to any officer or director, (C) make any loan to any officer or director of the Corporation or any of its subsidiaries, (D) enter into any employment agreement with any officer or director of the Corporation or any of its subsidiaries, (E) take any action with respect to the grant of any severance, change of control or termination pay to, or increase any benefits payable to any officer or director under its current severance, change of control or termination pay policies or any applicable contract, or (F) adopt or materially amend or make any contribution to any Corporation Plan or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation or other similar plan, agreement, trust, fund or arrangement for the benefit of directors or officers of the Corporation or any of its subsidiaries; (vi) except as agreed in writing by the Offeror prior to execution of this Agreement, the Corporation shall not, and shall not permit any of its subsidiaries to, settle or compromise (A) any action, claim, proceeding or dispute brought against it and/or any of its subsidiaries; or (B) any action, claim or proceeding or dispute brought by any present, former or purported holder of its securities; and (vii) the Corporation shall use its commercially reasonable efforts to cause the current insurance (or re-insurance) policies maintained by the Corporation or any of its subsidiaries, including directors’ and officers’ insurance, not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance or re-insurance companies of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; provided that, other than pursuant to Section 6.2, none of the Corporation or any of its subsidiaries shall obtain or renew any insurance (or re-insurance) policy for a term exceeding 12 months. (b) Without limiting the generality of the foregoing, during the period between the date hereof and the Effective Date, the Offeror shall be consulted with respect to, and, acting reasonably shall have the right to approve, all material decisions affecting the business or operations of the Corporation that are out of the ordinary course of business. The Corporation acknowledges and agrees that Offeror shall bear no responsibility for any losses, costs, Taxes, expenses and liabilities of any kind incurred in respect of, arising from or associated with Offeror’s exercise of its rights pursuant to this section, including, but not limited any claim by or in respect of any person in any manner affected by such exercise, provided that Offeror acted reasonably.
Appears in 2 contracts
Samples: Support Agreement (Optimal Group Inc), Support Agreement (7293411 Canada Inc.)
Conduct of Business by the Corporation. (a) The Corporation covenants and agrees thatwith the Purchaser that it shall, during the period from the date of this Agreement until the earlier of the time of appointment or election to the Board of Directors designated by the Offeror who represent a majority of the directors of the Corporation Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Offeror Purchaser shall otherwise agree in writing, writing (such agreement not to be unreasonably withheld or delayed), or and except as is otherwise expressly permitted or specifically contemplated by this Agreement or the Offer:
(i) the business Plan of Arrangement, as contemplated by the Corporation and Disclosure Letter, or as is otherwise required by applicable Law, conduct its subsidiaries shall be conducted onlybusiness only in, and the Corporation and its subsidiaries shall not take any action exceptexcept in, in the usual and ordinary course of business consistent with past practice and in compliance with all applicable Lawsbusiness, and the Corporation shall use all commercially reasonable best efforts to maintain and preserve its and its subsidiaries’ business organization, assets, employees, goodwill employees and advantageous business relationships, and, without limiting the generality of the foregoing, not:
(a) amend or propose to amend the constating documents of the Corporation;
(iib) adopt a plan of liquidation or resolutions providing for its liquidation or dissolution;
(c) reorganize, amalgamate or merge with any other Person;
(d) reduce the Corporation shall notstated capital of its outstanding shares;
(e) split, and shall not permit consolidate, combine, reclassify or otherwise amend the terms of any class of securities;
(f) issue or agree to issue any additional securities or any options, warrants, calls, conversion privileges or rights of any kind to acquire any securities;
(g) redeem, purchase or otherwise acquire any of its subsidiaries to, directly or indirectly: securities;
(A) amend its articles, charter or by-laws or other comparable organizational documents; (B) split, consolidate or reclassify any of its outstanding shares nor undertake any other capital reorganization; (Ch) declare, set aside or pay any dividend or other distribution or payment (whether in cash, shares securities or property) in respect of the Shares owned by any person or the securities of any subsidiary owned by a person other than the Corporation other than, in the case of any subsidiary wholly-owned by the Corporation, any dividends payable to the Corporation or any other wholly-owned subsidiary of the Corporation; (D) issue, grant, sell, pledge or otherwise encumber or agree to issue, grant, sell, pledge or otherwise encumber any shares of the Corporation or its subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Corporation or its subsidiaries, other than (1) the issuance of Shares issuable pursuant to the terms of the outstanding Options and Warrants, and (2) transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; (E) redeem, purchase or otherwise acquire any of its outstanding securities, unless otherwise required by the terms of such securities, and other than in transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; (F) amend the terms of any of its securities; (G) adopt a plan of liquidation or resolution providing for the liquidation or dissolution of the Corporation or any of its subsidiaries; (H) amend its accounting policies or adopt new accounting policies, in each case except as required in accordance with GAAP; (I) make any material Tax election or settle or compromise any material Tax liability; or (J) enter into, modify or terminate any Material Contract property with respect to any class of securities, other than the foregoingdividend to Corporation Shareholders as contemplated in the Plan of Arrangement;
(iiii) the Corporation shall promptly (and in make any event within 24 hours) notify the Offeror orally and promptly in writing of any material change as defined in the Securities Act; and any circumstance loan or development that is or would, individually or in the aggregate, reasonably be expected to constitute a Material Adverse Effect, provided that the foregoing, shall not apply advances to any Acquisition Proposalother Person;
(iv) the Corporation shall not, and shall not permit any of its subsidiaries to, directly or indirectly: (Aj) sell, pledge, leasedispose of, dispose of mortgage, licence or encumber any material assets of the Corporation property or assets;
(k) sell, pledge or dispose of any subsidiary; Partnership Units or shares of GP owned by it at the date of this Agreement;
(Bl) acquire (acquire, by merger, amalgamation, consolidation or consolidation, acquisition of shares securities or assets) assets or otherwise, any corporation, partnership or other business organization or division thereof, thereof or make any investment therein either by the purchase of securities, contributions of capital (other than to wholly-owned subsidiaries), or property transfer, or purchase of any material property or assets of any other person; ;
(Cm) incur or commit to capital expenditures;
(n) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or any other liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for for, the obligations of any other person other than a subsidiary of the CorporationPerson, or make any loans or advances except for refinancing of existing debt on substantially the same or more favourable terms; advances;
(Do) pay, discharge discharge, settle, satisfy, compromise, waive, assign or satisfy release any material claims, liabilities or obligations other than the payment, discharge or satisfaction of liabilities reflected or reserved against the Corporation financial statements or payments in the ordinary course of business; obligations;
(E) authorize, recommend or propose any release or relinquishment of any contractual right, other than in the ordinary course of business; (Fp) waive, release, grant grant, transfer, exercise, modify or transfer amend in any rights of material value; respect (i) any existing Corporation Material Contract, (ii) any material Authorization, or (Giii) authorize any other material legal rights or propose any of the foregoing, or enter into or modify any contract to do any of the foregoingclaims;
(vq) other than as is take any action or fail to take any action which action or failure to act would reasonably be expected to result in the material loss, expiration or surrender of, or the loss of any material benefit under, any material Authorization necessary to comply with conduct its business as now conducted;
(r) take any existing contractaction or fail to take any action that is intended to, Corporation Plan or agreement with any officer would reasonably be expected to, individually or director in the aggregate, prevent, materially delay or former officer or director, neither materially impede the ability of the Corporation nor any of its subsidiaries shall to consummate the Arrangement or the other transactions contemplated by this Agreement;
(As) grant to any director, officer or director of the Corporation or employee any of its subsidiaries an increase in compensation in any form, (B) grant any general salary increase to any officer or director, (C) make any loan to any officer director, officer, employee or director of the Corporation former employee, or any of its subsidiaries, (D) enter into any employment agreement with any officer or director of the Corporation or any of its subsidiaries, (E) take any action with respect to the grant of any change of control, severance, change of control retention or termination pay to, or increase the entering into of any benefits payable to employment agreement with, any director, officer or director under its current severanceemployee;
(t) establish, change of control adopt, enter into, amend in any material manner or termination pay policies terminate any Benefit Plan (or any applicable contract, or (F) adopt or materially amend or make any contribution to any Corporation Plan or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation or other similar plan, agreement, program, policy, trust, fund or other arrangement for that would be a Benefit Plan if it were in existence as of the benefit of directors date hereof) or officers collective bargaining agreement;
(u) enter into or renew any agreement, contract, lease, licence or other binding obligation of the Corporation or any of its subsidiaries;
(vi) except as agreed in writing by the Offeror prior to execution of this Agreement, the Corporation shall not, and shall not permit any of its subsidiaries to, settle or compromise (A) containing (1) any actionmaterial limitation or restriction on the ability of the Corporation or, claimfollowing completion of the transactions contemplated hereby, proceeding the ability of the Purchaser or dispute brought against it and/or its Subsidiaries, to engage in any type of activity or business, (2) any limitation or restriction on the localities in which, all or any portion of the business of the Corporation or, following consummation of the transactions contemplated hereby, all or any portion of the business of the Purchaser or its subsidiaries; Subsidiaries, is or would be conducted, or (3) any material limit or restriction on the ability of the Corporation or, following completion of the transactions contemplated hereby, the ability of the Purchaser or its Subsidiaries, to solicit customers or employees, or (B) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement;
(v) not enter into or renew any actionagreement, claim contract, lease, licence or proceeding or dispute brought by other binding obligation of the Corporation other than in ordinary course;
(w) make any present, former or purported holder changes to any of its securitiesaccounting policies, principles, methods, practices or procedures, except as required by applicable Laws or under GAAP or IFRS;
(x) make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Returns, or enter into any agreement with any Governmental Entity relating to Taxes;
(y) except pursuant to the Corporation Material Contracts, the transactions contemplated by this Agreement and for transactions undertaken in the ordinary course of business, enter into any transaction, undertaking or arrangement with any Person with which it is not dealing at arm’s length, as that term is defined for the purposes of the Tax Act; and
(viiz) agree, resolve or commit to do any of the foregoing. In addition, the Corporation covenants and agrees with the Purchaser that it shall vote, or cause to be voted, the Partnership Units owned by it in favour of the Arrangement at the Partnership Meeting, and that it shall, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, use its commercially reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause the its current insurance (or re-insurance) policies maintained by the Corporation or any of its subsidiariespolicies, including directors’ and officers’ insurance, not to be cancelled or terminated or any of the coverage coverages thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate be material to the Corporation, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance or re-insurance companies of nationally recognized standing having comparable deductions deductibles and providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; provided that, other than pursuant that subject to Section 6.24.16, none of the Corporation or any of its subsidiaries shall not obtain or renew re-new any insurance (or re-insurance) policy for a term exceeding 12 months.
(b) Without limiting the generality of the foregoing, during the period between months from the date hereof and the Effective Date, the Offeror shall be consulted with respect to, and, acting reasonably shall have the right to approve, all material decisions affecting the business or operations of the Corporation that are out of the ordinary course of business. The Corporation acknowledges and agrees that Offeror shall bear no responsibility for any losses, costs, Taxes, expenses and liabilities of any kind incurred in respect of, arising from or associated with Offeror’s exercise of its rights pursuant to this section, including, but not limited any claim by or in respect of any person in any manner affected by such exercise, provided that Offeror acted reasonablyhereof.
Appears in 1 contract
Conduct of Business by the Corporation. (a) The Corporation covenants and agrees that, that during the period from the date of this Agreement until the earlier of the time of appointment or election to the Board of Directors designated by the Offeror who represent a majority of the directors of the Corporation Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Offeror Acquiror shall otherwise agree consent in writingwriting or as otherwise expressly contemplated or permitted by this Agreement, such agreement not to be unreasonably withheld the Plan of Arrangement or delayedthe Disclosure Letter, or as is otherwise expressly permitted required by Law or specifically contemplated by this Agreement or any Governmental Authority, the OfferCorporation shall, and shall cause each of its subsidiaries to:
(ia) the conduct its business of the Corporation and its subsidiaries shall be conducted only, and the Corporation and its subsidiaries shall not take any action except, in the usual Ordinary Course and ordinary course of use commercially reasonable efforts to preserve intact its present business consistent with past practice organization and in compliance with all applicable Laws, and the Corporation shall assets;
(b) use all commercially reasonable efforts to maintain and preserve its and its subsidiaries’ intact the current business organization, assets, employees, goodwill properties and business relationshipsof the Corporation and its subsidiaries;
(iic) use commercially reasonable efforts to keep available the Corporation shall notservices of the present employees and agents of the Corporation;
(d) use commercially reasonable efforts to maintain and preserve good relations with, and shall the goodwill of relationships with key suppliers, distributors, employees, inventors, vendors, contract research organizations, customers and others having material business relationships with it and its subsidiaries;
(e) not permit any of its subsidiaries tosplit, directly or indirectly: (A) amend its articles, charter or by-laws or other comparable organizational documents; (B) splitcombine, consolidate or reclassify any of its outstanding shares of the Corporation or its subsidiaries nor undertake any other capital reorganization; (C) , nor declare, set aside or pay any dividend dividends on or make any other distribution or payment distributions (whether in cash, shares stock or property) property or any combination thereof), nor reduce capital in respect of outstanding shares of the Shares owned by any person Corporation or its subsidiaries;
(f) not amend its articles or by-laws, constating documents, including the Corporation’s Constating Documents, or the securities terms of any subsidiary owned by a person other than the Corporation other thanits outstanding securities, or, in the case of any subsidiary wholly-owned by which is not a corporation, its similar organizational documents;
(g) not issue, grant, deliver, sell, pledge, award or otherwise encumber, or authorize the Corporationissuance, grant, delivery, sale, pledge or other encumbrance of any dividends payable to shares of capital stock, securities, options, warrants or similar rights exercisable or exchangeable for or convertible into such capital stock, of the Corporation or any other wholly-owned subsidiary of the Corporation; (D) issue, grant, sell, pledge or otherwise encumber or agree to issue, grant, sell, pledge or otherwise encumber any shares of the Corporation or its subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Corporation or its subsidiaries, other than (1) the issuance of Common Shares issuable pursuant upon the exercise of currently outstanding Rights in accordance with their terms;
(h) not redeem or purchase or otherwise acquire or offer to the terms of the outstanding Options and Warrants, and (2) transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; (E) redeem, purchase or otherwise acquire any outstanding securities of its outstanding securities, unless otherwise required by the terms of such securities, and other than in transactions between two or more Corporation wholly-owned subsidiaries or between the Corporation and a Corporation wholly-owned subsidiary; or its subsidiaries;
(Fi) amend the terms of not reorganize, amalgamate, combine or merge with any of its securities; (G) other person or adopt or enter into a plan of liquidation or resolution dissolution or resolutions providing for the liquidation or dissolution of the Corporation or any of its subsidiaries; ;
(Hj) amend its accounting not, without consent or permission of the Acquiror, which consent or permission not to be unreasonably withheld, delayed, or conditioned, enter into or modify any employment, consultant, severance, collective bargaining or similar plans, agreements, policies or adopt new accounting policiesarrangements (including any Employee Plans) with, or establish, grant or increase in each case except any material respect any bonuses, salary increases, remuneration, stock options, pension or supplemental pension or other benefits (including any Employee Plans), profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation to, or make any loan to, any of its employees, consultants, directors or officers, other than (i) as required in accordance with GAAP; (I) make any material Tax election or settle or compromise any material Tax liability; by Law, or (Jii) enter intoas required pursuant to the terms of any employment, modify pension, supplemental pension, termination or terminate compensation plans, agreements, arrangements or policies (including any Material Contract with respect Employee Plans) existing as of the date hereof, or take or propose any action to effect any of the foregoing;
(iiik) the Corporation shall promptly not acquire or commit to acquire (and in any event within 24 hours) notify the Offeror orally and promptly in writing by amalgamation, arrangement, merger, consolidation, acquisition of any material change as defined in the Securities Act; and any circumstance stock or development that is assets or would, individually or in the aggregate, reasonably be expected to constitute a Material Adverse Effect, provided that the foregoing, shall not apply to any Acquisition Proposal;
(iv) the Corporation shall not, and shall not permit any of its subsidiaries tootherwise), directly or indirectly: , in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses having a value in excess of $100,000 in the aggregate;
(Al) not, without consent or permission of the Acquiror, which consent or permission not to be unreasonably withheld, delayed, or conditioned, sell, pledge, lease, dispose of, surrender, mortgage, license, option, encumber or otherwise dispose of, or commit to sell, pledge, lease, dispose of, surrender, mortgage, license, option, encumber or otherwise dispose of, or transfer any assets or group of related assets (through one or encumber more related or unrelated transactions), or any material interest in any assets or group of related assets, including any interest in any of the Corporation Company Owned IP or instruct the owner of any subsidiary; (B) acquire (by mergerof the Company Licensed Registered IP to sell, amalgamationpledge, consolidation lease, dispose of, surrender, mortgage, license, option, encumber or acquisition of shares or assets) any corporation, partnership or other business organization or division thereofotherwise dispose of, or commit to sell, pledge, lease, dispose of, surrender, mortgage, license, option, encumber or otherwise dispose of, or transfer any of the Company Licensed Registered IP, other than in the Ordinary Course or immaterial assets;
(m) not incur or commit to any capital expenditures having a value in excess of $250,000 in the aggregate;
(n) not make any investment either by the purchase of securities, contributions of capital (other than to wholly-owned subsidiaries), property transferloan or advance to, or any capital contribution or investment in, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of, any person;
(o) not prepay any indebtedness (whether on account of borrowed money, deferred purchase price of any material property or assets otherwise) before its scheduled maturity;
(p) not increase, create, incur, assume or otherwise become liable, in one transaction or in a series of any other person; (C) incur related transactions, with respect to any indebtedness for borrowed money or guarantees thereof;
(q) not make any other liability bonus or obligation profit sharing distribution or issue any debt securities or assume, guarantee, endorse or otherwise similar payment of kind except as an accommodation become responsible for required pursuant to the obligations terms of any other person other than a subsidiary of Contract or profit sharing plan existing on the Corporationdate hereof;
(r) not enter into any interest rate, currency, equity or make any loans commodity swaps, hxxxxx, derivatives, forward sales contracts or advances except for refinancing of existing debt on substantially the same or more favourable terms; similar financial instruments;
(Ds) not pay, discharge or satisfy any material claimsClaims, liabilities or obligations other than the payment, discharge or satisfaction satisfaction, in the Ordinary Course of liabilities reflected or reserved against in the Corporation Corporation’s annual audited financial statements or payments for the year ended December 31, 2015, incurred in the ordinary course of business; Ordinary Course subsequent to December 31, 2015 and reflected in the Corporation’s reviewed financial statements for the six month period ended June 30, 2016 or costs related to the Arrangement or incurred in the Ordinary Course, in each case after June 30, 2016;
(Et) authorizenot waive, recommend release, compromise, terminate or propose relinquish any release or relinquishment of any material contractual right, material right under any licence or permit or other material legal rights or Claims, other than in the ordinary course of business; Ordinary Course;
(Fu) waive, release, grant not amend or transfer modify or terminate or waive any rights of material value; or (G) authorize or propose right under any of the foregoing, Material Contract or enter into or modify any contract to do any of or agreement that would be a Material Contract if in effect on the foregoingdate hereof;
(v) other than as is necessary duly and on a timely basis file all Tax Returns required to comply be filed by it, which shall be correct and complete in all material respects, on or after the date hereof pursuant to applicable Laws in a manner consistent with past practice;
(w) timely pay, withhold, collect and remit to the appropriate Governmental Entity in a timely fashion all amounts required to be so paid, withheld, collected or remitted;
(x) not (i) make, rescind or change any existing contractelection relating to Taxes, Corporation Plan annual Tax accounting period or agreement with any officer or director or former officer or director, neither the Corporation nor any method of its subsidiaries shall (A) grant to any officer or director of the Corporation or any of its subsidiaries an increase in compensation Tax accounting in any formmaterial respect, (B) grant any general salary increase to any officer or director, (C) make any loan to any officer or director of the Corporation or any of its subsidiaries, (Dii) enter into (or offer to enter into) any employment agreement (including any waiver) with any Governmental Authority relating to Taxes, (iii) without the prior written consent of the Acquiror, settle (or offer to settle) any material Tax claim, audit, proceeding or re-assessment, or (iv) amend any Tax Return or change from most recent practice any manner of reporting income or claiming deductions for Tax purposes;
(y) except as required by Law and in a manner consistent with past practice, not make any material Tax election, information schedule, return or designation, settle or compromise any material Tax claim, assessment, reassessment or liability, file any amended Tax Return, enter into any material agreement with any officer or director of the Corporation or any of its subsidiaries, (E) take any action a Governmental Authority with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the grant extension or waiver of any severance, change of control or termination pay to, or increase any benefits payable the limitation period applicable to any officer or director under its current severance, change of control or termination pay policies or any applicable contract, or (F) adopt material Tax matter or materially amend or make change any contribution of its methods or reporting income, deductions or accounting for income Tax purposes except as may be required by Law;
(z) keep the Acquiror informed, on a current basis, of any events, discussions, notices or changes with respect to any Corporation Plan Tax (other than communications in the Ordinary Course which could not reasonably be expected to be material to the Corporation), criminal or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation regulatory investigation or other similar plan, agreement, trust, fund or arrangement for the benefit of directors or officers of action involving the Corporation or and any of its subsidiaries;
(viaa) except not make any changes to the Corporation’s existing accounting policies other than as agreed in writing required by the Offeror prior to execution of this Agreementapplicable Laws, the Corporation shall not, and shall not permit any of its subsidiaries to, settle a Governmental Authority or compromise (A) any action, claim, proceeding or dispute brought against it and/or any of its subsidiaries; or (B) any action, claim or proceeding or dispute brought by any present, former or purported holder of its securities; andIFRS;
(viibb) the Corporation shall use its commercially reasonable efforts to cause the current not amend, modify, terminate, cancel or let lapse any material insurance (or re-insurance) policies maintained by policy of the Corporation or any subsidiary in effect on the date of its subsidiaries, including directors’ and officers’ insurance, not to be cancelled or terminated or any of the coverage thereunder to lapsethis Agreement, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance or and re-insurance companies of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the cancelledterminated, terminated cancelled or lapsed policies for substantially similar premiums are in full force and effect; provided that, other than pursuant ;
(cc) not engage in any transaction with any related parties;
(dd) subject to Section 6.25.1(ee), none not, without consent or permission of the Acquiror, which consent or permission not to be unreasonably withheld, delayed, or conditioned, commence or cancel, waive, release, assign, settle or compromise any Claims or any rights relating to or any interest in any litigation, proceeding, Claim, action, assessment or investigation involving the Corporation or any of its subsidiaries shall obtain or renew any insurance (or re-insurance) policy for a term exceeding 12 months.material assets;
(bee) Without limiting not settle, compromise, concede or acquiesce to any threat, assertion, demand or claim against the generality Corporation regarding Company IP or the Product;
(ff) not, without consent or permission of the foregoingAcquiror, during which consent or permission not to be unreasonably withheld, delayed, or conditioned, abandon or materially reduce the period between the date hereof and the Effective Datescope of any pending or Registered IP;
(gg) not, the Offeror shall be consulted with respect to, and, acting reasonably shall have the right to approve, all material decisions affecting the business without consent or operations permission of the Corporation that are out of the ordinary course of business. The Corporation acknowledges and agrees that Offeror shall bear no responsibility for any lossesAcquiror, costswhich consent or permission not to be unreasonably withheld, Taxesdelayed, expenses and liabilities of any kind incurred in respect ofor conditioned, arising from or associated with Offeror’s exercise of its rights pursuant to this section, including, but not limited any claim by or (i) in respect of any person Company Assets other than Company IP, waive, release, surrender, let lapse, grant or transfer any material right or value or amend, modify or change, or agree to amend, modify or change, in any manner affected material respect any existing material Authorization, right to use, contract or other material document or, (ii) in respect of Company IP, waive, release, surrender, let lapse, grant or transfer any material right or value in the Company IP or instruct the owner of Company Licensed Registered IP to waive, release, surrender, let lapse, grant or transfer any material right or value in any Company Licensed Registered IP;
(hh) not abandon or fail to diligently pursue any application for any material Authorizations, licenses, leases, or registrations or take any action, or fail to take any action, that could lead to the termination of any material Authorizations, licenses, leases or registrations;
(ii) not, without consent or permission of the Acquiror, which consent or permission not to be unreasonably withheld, delayed, or conditioned, except in the Ordinary Course, (i) grant or acquire, agree to grant to or acquire from any person, abandon or permit to lapse any rights to any material Intellectual Property Rights or disclose or agree to disclose to any person, other than Representatives of the Acquiror, any material trade secrets, or (ii) fail to take any action necessary or material action advisable to protect or maintain the Intellectual Property Rights;
(jj) not enter into or amend any Contract with any broker, finder or investment banker, including any amendment of any of the Contracts listed in Section 17 of the Disclosure Letter;
(kk) not, without consent or permission of the Acquiror, which consent or permission not to be unreasonably withheld, delayed, or conditioned, grant or commit to grant an exclusive licence or otherwise transfer any Intellectual Property Rights or exclusive rights in or in respect thereto, other than in the Ordinary Course or to a wholly-owned subsidiary of the Corporation;
(ll) not take any action or fail to take any action that is intended to, or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Corporation to consummate the Arrangement or the other transactions contemplated by this Agreement;
(mm) not take any action that would cause any representation or warranty of the Corporation set out in Schedule C to be untrue or incorrect in any respect such exercisethat the condition at Section 9.3(a) would not be satisfied;
(nn) not announce an intention, provided enter into any agreement, or otherwise authorize, agree, resolve or make a commitment, whether or not in writing, to do any of the things prohibited by any of the foregoing subparagraphs; and/or
(oo) except to the extent required by Law to protect patient safety, not amend the protocol for clinical trials CTH-300 or CTH-301, modify or take any action that Offeror acted reasonablydeviates from the current clinical trial study designs, time lines and protocols for clinical trials CTH-300 and CTH-301 (excluding the amendment for at home titration recommended by the Data and Safety Monitoring Board), including without limitation, taking any action that would impact the study cycle time line, patient and study site recruitment and enrollment status, patient standards of care, study objectives or strategy, protocol complexity, or the statistical analysis.
Appears in 1 contract
