Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) of the Meadow Disclosure Schedule, (ii) as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, or (v) as may be consented to in writing by Xxxx (which consent shall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period, Meadow shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in the Ordinary Course of Business. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Meadow Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws): (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases from terminated employees, directors or consultants of Meadow or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans in accordance with the terms of such award in effect on the date of this Agreement); (ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock or any other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub; (iii) except as required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions; (iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity; (A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”); (vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period); (vii) recognize any labor union or labor organization, except as otherwise required by applicable Law; (viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business; (ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries; (x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes; (xi) enter into, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof; (xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures; (xiii) initiate or settle any Legal Proceeding; (xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or (xv) agree, resolve or commit to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Infinity Pharmaceuticals, Inc.), Agreement and Plan of Merger (MEI Pharma, Inc.), Merger Agreement (Infinity Pharmaceuticals, Inc.)
Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) From and after the date hereof until the earlier of the Meadow Disclosure Schedule, (ii) as expressly permitted by or required Effective Time and the termination of this Agreement in accordance this Agreementwith its terms, except as (iiiA) as may be required by applicable Law, (ivB) for COVID-19 Measures and Responses, or (v) as may be consented to in writing in advance by Xxxx Saturn (which consent shall not be unreasonably withheld, delayed or conditioned), during (C) otherwise specifically contemplated by this Agreement or (D) set forth in Section 5.1 of the Pre-Closing PeriodXxxxxx Disclosure Letter, Meadow Xxxxxx (x) shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct carry on its business in the Ordinary Course (including using commercially reasonable efforts to maintain insurance reasonably required for the operation of Business. In additionits business in the Ordinary Course and make any required filings under applicable Law), and without limiting the generality of the foregoing, except for matters set forth in the Meadow Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow y) shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided it being understood that no if any action is permitted by any of the following subsections pursuant to an exception to conduct that would otherwise be prohibited, such consent of Iris action shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Lawspermitted under this Section 5.1):
(ia) (A) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or property) in respect of of, any shares of its capital stock or repurchaseother equity interests, except for dividends by a direct or indirect wholly owned Subsidiary of Xxxxxx to its parent, or, (B) purchase, redeem or otherwise reacquire acquire shares of capital stock or other equity interests or rights of Xxxxxx or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests or rights, other than (x) the acquisition of shares of capital stock or other equity interests or rights of a direct or indirect wholly owned Subsidiary of Xxxxxx from Xxxxxx or any other direct or indirect wholly owned Subsidiary of Xxxxxx, or (y) the acquisition of Xxxxxx Common Stock upon the exercise, settlement, or vesting of Xxxxxx Equity Awards outstanding as of the date hereof (in accordance with their terms as of the date hereof), or (C) split, combine, reclassify, subdivide or otherwise amend the terms of any of its capital stock or other equity interests or rights 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 other securities equity interests or rights, other than as permitted by the proviso in clause (b) below;
(b) except repurchases from terminated employeesfor transactions solely among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries, directors (i) issue, sell, pledge, dispose of, encumber, transfer, award or consultants grant any shares of Meadow its capital stock, or (ii) issue, award or grant any shares of its Subsidiaries’ capital stock, or in connection with each case of clauses (i) and (ii), any options, warrants, convertible securities or other rights of any kind to acquire the payment of the exercise price and/or withholding Taxes incurred same; provided, however, that Xxxxxx may issue shares upon the exercise, payment or settlement or vesting of any award Xxxxxx Warrants or purchase rights granted under Xxxxxx Equity Awards outstanding as of the Meadow Stock Plans date hereof (in accordance with their terms as of the terms date hereof);
(c) amend, restate or otherwise change, or authorize or propose to amend, restate or otherwise change the certificate of incorporation or bylaws (or similar organizational documents) of (i) Xxxxxx, or (ii) any Subsidiary of Xxxxxx, in the case of this clause (ii) to the extent such award amendment, restatement or change would, individually or in effect the aggregate, reasonably be expected to prevent or materially delay or make more unlikely to occur the consummation of the Merger and the other transactions contemplated hereby;
(d) (i) acquire or agree to acquire by merging or consolidating with, or purchasing any equity or assets of, any corporation, partnership, association or other business organization or division or line of business thereof or (ii) otherwise purchase, lease, license or otherwise acquire any assets or properties of any other Person, other than in the case of this clause (ii), in the Ordinary Course of business;
(e) directly or indirectly sell, pledge, transfer, lease or otherwise dispose of any of the properties, assets or rights listed on Section 5.1(e) of the Xxxxxx Disclosure Letter, in each case unless such sale, pledge, transfer, lease or disposition is carried out in a manner consistent with the descriptions and requirements set forth therein;
(f) adopt or enter into a plan of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, except for transactions solely among Xxxxxx’x wholly owned Subsidiaries (including, for the avoidance of doubt, a complete or partial liquidation or dissolution of any Subsidiary of Xxxxxx) or in compliance with Section 5.3;
(g) incur or commit to incur, create, prepay, refinance, assume or guarantee for any Person, any Indebtedness, or amend, modify or refinance any Indebtedness, except (i) the incurrence of Indebtedness under Xxxxxx’x existing credit facilities in the Ordinary Course, (ii) interest accruals on any existing Indebtedness (which for the avoidance of doubt shall constitute Indebtedness hereunder), including for clarity any payments in respect thereof, and (iii) any prepayment of Indebtedness (and any related prepayment, “make whole” or similar payments) provided that Xxxxxx first provides Saturn reasonable advance notice thereof;
(h) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto, except to the extent funded or paid in full prior to, and with no continuing obligation following, the Closing (it being understood, for the avoidance of doubt and without duplication, that any such capital expenditures actually incurred shall be included in the calculation of Closing Cash);
(i) enter into any arrangement, understanding, or Contract with any director, officer or Affiliate of Xxxxxx or other Contract or a transaction of a type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act, except to the extent satisfied and terminated prior to the Closing Date with no further obligation or liability of or to Xxxxxx or any of its Subsidiaries following the Closing (other than customary indemnification obligations under Contracts entered into in the Ordinary Course);
(j) except in the Ordinary Course, (A) enter into, materially modify, amend, renew, terminate, cancel or extend any material Contract (other than terminations thereof upon the expiration of any such Contract in accordance with its terms), or (B) waive, release, assign or otherwise forego any material right or claim of Xxxxxx or any of its Subsidiaries under any material Contract;
(k) make any material change to its financial accounting methods, or procedures except (A) insofar as may have been required by GAAP (or any interpretation thereof), SEC rules and regulations or a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization), (B) as disclosed in the Xxxxxx SEC Documents filed with the SEC prior to the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock or any other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Meadow, any of its Subsidiaries or Merger Subin conformity with changes made by Spectrum;
(iiil) except as required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur make or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries;
(x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, (B) file any amendment making to any material change to any Tax Return, (C) settle or compromise any income Tax or other material Tax liability audit or submit any voluntary disclosure application, enter into any material closing agreement, (D) change any annual Tax allocationaccounting period, sharing(E) adopt or change any material Tax accounting method, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation F) surrender any right to claim a material refund of Taxes), request or (G) consent to any extension or waiver of any the limitation period with respect applicable to any Tax claim or assessment for relating to Xxxxxx, (H) file Tax Returns or register to do business in any income jurisdiction in which Xxxxxx did not file Tax Returns or other material Taxes was not registered to do business in as of the date hereof or (other than I) approve any Transfer (as defined in the Xxxxxx Charter) of Xxxxxx Common Stock pursuant to, or grant any waiver of the restrictions contained in, Section (c)(ii) of Article XII of the Xxxxxx Charter;
(m) except (i) as required pursuant to an extension existing written agreements or Xxxxxx Plans in effect as of time to file any Tax Return granted the date hereof and as set forth in Section 5.1(m) of the Xxxxxx Disclosure Letter, or (ii) for the termination of employees in the Ordinary Course and the entry into any agreements related thereto (it being understood that any payment related to or arising from any such termination or related agreement will be deemed to constitute Xxxxxx Final Unpaid Transaction Expenses to the extent unpaid as of Business of not more than seven monthsthe Adjustment Measurement Date), or adopt or change any material accounting method in respect of Taxes;
(xiA) adopt, enter into, materially amend amend, modify or terminate any Meadow Material Contractterminate, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to accelerate, the funding vesting or payment of any compensation or benefit under, any Xxxxxx Plan, (B) increase the compensation or other benefits payable or to become payable to directors, employees, consultants or independent contractors of Xxxxxx or any of its Subsidiaries, (C) grant any severance, change accounting policies of control, retention or procedurestermination pay to, or enter into, or amend or modify, any severance, change of control, retention or termination agreement or arrangement with, any director, employee, consultant or independent contractor of Xxxxxx or any of its Subsidiaries, (D) enter into any written agreement with an employee other than in the Ordinary Course or (E) establish, adopt, enter into, modify or amend any CBA, plan, trust, fund, policy or arrangement for the benefit of any current or former directors or employees or any of their beneficiaries;
(xiiin) initiate waive, release, settle or settle agree to the entry of any Legal Proceedingorder, in respect of any claim or Action of or against Xxxxxx or any of its Subsidiaries, other than (i) settlements or orders that involve only the payment of monetary damages that do not result in liability or cost to Xxxxxx or any of its Subsidiaries following the Closing Date, (ii) claims arising between the parties to this Agreement, or (iii) in compliance with Section 5.8 (it being understood that Xxxxxx shall reasonably consult with Saturn in connection with any proposed settlement of any Action);
(xivo) enter into or amend any Contract for the purpose line of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactionsbusiness; or
(xvp) agreeauthorize any of, or commit, resolve or commit agree to do take any of of, the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Spectrum Brands Holdings, Inc.), Merger Agreement (HRG Group, Inc.)
Conduct of Business by Xxxxxx. Except During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated or permitted in this Agreement and except to the extent Coors shall otherwise give its prior written consent, each of Molson and its Subsidiaries shall: (i) for matters set forth in Section 5.1(b) of the Meadow Disclosure Schedule, (ii) as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, or (v) as may be consented to in writing by Xxxx (which consent shall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period, Meadow shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in the Ordinary Course ordinary course and consistent with past practice and in compliance in all material respects with applicable Laws; (ii) pay or perform its material obligations when due; and (iii) use its commercially reasonable efforts consistent with past practices to: (A) preserve intact its present business organization, (B) keep available the services of Business. In additionits present officers and employees, (C) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and without others with which it has significant business dealings, and (D) preserve in all material respects the Molson Intellectual Property. Without limiting the generality of the foregoing, except for matters set forth as provided in Section 5.1 of the Meadow Molson Disclosure Schedule or otherwise expressly permitted or as expressly contemplated by this Agreement or required by applicable Law or with the Plan of Arrangement, without the prior written consent of Xxxx (which shall not be unreasonably withheld, conditioned or delayed)Coors, during the Pre-Closing Periodperiod from the date of this Agreement to the Effective Time, Meadow Molson shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws):following:
(ia) amend its articles of incorporation or by-laws or other applicable governing instruments;
(b) split, combine, subdivide or reclassify any shares of its capital stock or other equity interests or declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of its capital stock or repurchasesecurities, redeem or otherwise reacquire any shares of its capital stock or other securities except for (except repurchases from terminated employeesi) cash dividends with respect to the Molson Common Shares consistent with past practice and in the ordinary course, directors or consultants of Meadow or in connection each case with the usual declaration, record and payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans dates and in accordance with the terms of such award in effect on the date of this Agreement);
Xxxxxx's past dividend policy and (ii) sell, issue, grant, modify, reprice, pledge dividends paid to Molson or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries by any Subsidiary that is, directly or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any optionindirectly, warrant or right to acquire any capital stock or any other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Meadow, any of its Subsidiaries or Merger Subwholly owned by Xxxxxx;
(iiic) except as required to give effect to anything in contemplation adopt a plan or agreement of the Closingcomplete or partial liquidation, amend any of Meadow’s or its Subsidiaries’ Organizational Documentsdissolution, or effect or be a party to any winding up, merger, consolidation, share exchangeamalgamation, business combinationrestructuring, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest recapitalization or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee reorganization (other than ordinary course replacement of departed employees a merger or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Periodconsolidation between wholly owned Subsidiaries);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries;
(x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;
(xi) enter into, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agree, resolve or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Combination Agreement (Coors Adolph Co), Combination Agreement (Coors Adolph Co)
Conduct of Business by Xxxxxx. Except During the period from the date of this Agreement to the Effective Time, except (i) for matters set forth as consented to in Section 5.1(b) of writing in advance by the Meadow Disclosure ScheduleCompany (such consent not to be unreasonably withheld, conditioned or delayed), (ii) as expressly permitted required by any Governmental Entity or required in accordance this Agreementany applicable Law (including any COVID-19 Measures), (iii) as required by applicable Law, for reasonable actions taken in response to COVID-19 (including all COVID-19 Measures) that are taken in good faith and are consistent with reasonable commercial practice in response to COVID-19 and with respect to which Parent has reasonably consulted with the Company (to the extent practicable) or (iv) for COVID-19 Measures and Responsesas otherwise specifically required, contemplated or (v) as may be consented to in writing permitted by Xxxx (which consent shall not be unreasonably withheldthis Agreement, delayed or conditioned), during the Pre-Closing Period, Meadow Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable best efforts to conduct carry on its business in all material respects in the Ordinary Course ordinary course of Businessbusiness consistent with past practice and use reasonable best efforts to preserve intact its business organization, preserve its assets, rights and properties in good repair and condition, keep available the services of its current officers and key employees and consultants and preserve its goodwill and its relationships with customers, suppliers, licensors, licensees, distributors and others having material business dealings with it; provided, however, that the failure to take any action expressly prohibited by or the taking of any action specifically addressed by the covenants and agreements set forth in the next sentence by Parent or any of its Subsidiaries shall not be deemed to be a breach by Parent or its Subsidiaries of the covenants and agreements set forth in this sentence. In addition, addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except for matters (1) as set forth in Section 5.1(b) of the Meadow Parent Disclosure Schedule or otherwise expressly permitted or expressly contemplated Letter, (2) as consented to in writing in advance by this Agreement or required by applicable Law or with the prior written Company (such consent of Xxxx (which shall not to be unreasonably withheld, conditioned or delayed), during (3) as required by any Governmental Entity or any applicable Law (including any COVID-19 Measures), (4) for reasonable actions taken in response to COVID-19 (including all COVID-19 Measures) taken in good faith and are consistent with reasonable commercial practice in response to COVID-19 and with respect to which Parent has reasonably consulted with the Pre-Closing PeriodCompany (to the extent practicable) or (5) as otherwise specifically required, Meadow contemplated or permitted by this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws)::
(i) (A) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for (1) dividends by a Subsidiary of Parent not to exceed $15,000,000 in the aggregate, or (2) regular quarterly cash dividends payable by Parent in respect of the Parent Common Stock with declaration, record and payment dates consistent with Parent’s past practices and in an amount per share of Parent Common Stock as approved by the Parent Board in the ordinary course of business, (B) purchase, redeem or otherwise acquire shares of capital stock or other equity interests of Parent or any options, warrants, or rights to acquire any such shares or other equity interests, other than (1) repurchases of shares of Parent Common Stock in connection with the vesting or settlement of Parent Options, in each case outstanding as of the Measurement Date in accordance with the present terms of Parent’s equity plans and applicable award agreements of such Parent Options or (2) repurchases of shares of Parent Common Stock up to $500,000,000, in the aggregate, pursuant to an open-market repurchase program for the prevailing market price or (C) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests (other than transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among the Parent’s wholly owned Subsidiaries) 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 repurchaseother equity interests;
(ii) issue, redeem or otherwise reacquire deliver, sell, grant any shares of its capital stock or other securities (except repurchases from terminated employees, directors or consultants of Meadow or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans in accordance with the terms of such award in effect on the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock equity interests or any other security; or (C) any instrument securities convertible into into, or exchangeable for or exercisable for any such shares or other equity interests, or any rights, warrants or options to acquire, any such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of Parent on a deferred basis or other security rights linked to the value of Meadowshares of Parent Common Stock, any of its Subsidiaries or Merger Sub;
(iii) except as required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) each case other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(Ax) lend money pursuant to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan Contracts as in effect on the date hereof, (y) the issuance of this Agreement: shares of Parent Common Stock, Parent Options, Parent RSUs, Parent performance share units or other equity awards for any commercially reasonable compensatory purpose or (z) in an amount not to exceed $100,000,000 in the aggregate in connection with any strategic transaction entered into on arms’ length terms;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, the certificate of incorporation or by-laws (or similar organizational documents) (whether by merger, consolidation, conversion or otherwise) of Parent;
(iv) directly or indirectly acquire, agree to acquire, or make an offer to acquire (A) adoptby merging or consolidating with, terminatepurchasing a substantial equity interest in or a substantial portion of the assets of, establish making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the business of Parent and its Subsidiaries, taken as a whole, other than inventory acquired in the ordinary course of business, except, in each case, for acquisitions with a value or purchase price not in excess of $1,000,000,000 in the aggregate;
(v) adopt or enter into any Meadow Benefit Plana plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly owned Subsidiaries of Parent;
(vi) change its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in the Ordinary Course of Business; (B) cause GAAP or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissionsapplicable Law, or bonus compensation payable to revalue any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);material assets; or
(vii) recognize authorize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or propertiesof, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries;
(x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;
(xi) enter into, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agreecommit, resolve or commit agree to do take any of of, the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Conduct of Business by Xxxxxx. Except (ia) for matters At all times from the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Clause 9, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Section 5.1(b) Clause 5.1 of the Meadow Xxxxxx Disclosure Schedule, or with the prior written consent of Eaton (ii) as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, or (v) as may be consented such consent not to in writing by Xxxx (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), during the Pre-Closing Period, Meadow Xxxxxx shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in the Ordinary Course ordinary course consistent with past practice in all material respects; provided, however, that no action by Xxxxxx or its Subsidiaries with respect to matters specifically addressed by any provision of Business. In addition, and without limiting Clause 5.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such relevant provision of Clause 5.1(b).
(b) At all times from the generality execution of this Agreement until the earlier of the foregoingEffective Time and the date, if any, on which the Agreement is terminated pursuant to Clause 9, except for matters as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Clause 5.1 of the Meadow Xxxxxx Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law Schedule, or with the prior written consent of Xxxx Eaton (which shall such consent not to be unreasonably withheld, conditioned or delayed), during Xxxxxx:
(i) shall not, and shall not permit any of its Subsidiaries that is not wholly owned to, authorise or pay any dividends on or make any distribution with respect to the Pre-Closing Periodoutstanding shares in its capital (whether in cash, Meadow assets, shares or other securities of Xxxxxx or its Subsidiaries), except (A) dividends and distributions paid or made on a pro rata basis by Subsidiaries in the ordinary course consistent with past practice and (B) that, subject to Clause 7.9, Xxxxxx may continue to pay regular quarterly cash dividends on Xxxxxx Shares of not more than $0.31 per share per quarter, consistent with past practice as to timing of declaration, record date and payment date;
(ii) shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believessplit, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws):
(i) declare, accrue, set aside combine or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases from terminated employees, directors or consultants of Meadow or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans in accordance with the terms of such award in effect on the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, reclassify any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon capital in issue, or issue or authorise the valid exercise or conversion issuance of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock or any other security; securities in respect of, in lieu of or in substitution for, shares in its capital, except (Cunless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) any instrument convertible into or exchangeable for any capital stock or other security such transaction by a wholly owned Subsidiary of Meadow, any Xxxxxx which remains a wholly owned Subsidiary after consummation of its Subsidiaries or Merger Subsuch transaction;
(iii) except as required to give effect to anything in contemplation of the Closingshall not, amend and shall not permit any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party Subsidiaries to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to grant any Person (except for the advancement of expenses to employeesXxxxxx Options, directors and consultants in the Ordinary Course of Business)Xxxxxx Share Awards or any other equity-based awards, (B) incur increase the compensation or guarantee any indebtedness for borrowed moneyother benefits payable or provided to Xxxxxx’x current or former directors, corporate officers, executive officers or Xxxxxx MCA Employees, (C) guarantee increase the compensation or other benefits payable or provided to Xxxxxx’x employees who are not current or former directors, corporate officers, executive officers or Xxxxxx MCA Employees, other than in the ordinary course of business and consistent with past practices, (D) enter into any debt securities employment, change of otherscontrol, severance or retention agreement with any employee of Xxxxxx (except (1) to the extent necessary to replace a departing employee who was party to such an agreement, in which case, any such new agreement shall not provide for compensation or benefits materially in excess of the compensation or benefits payable to such departing employee at the time of his or her termination, (2) for employment agreements terminable on less than 30 days’ notice without penalty or liability, or (D3) other than the incurrence or payment of Transaction Expenses, make any capital expenditure for severance agreements that provide severance benefits that are not in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan those benefits provided under Xxxxxx’x xxxxxxxxx plan, as in effect on the date hereof, entered into with employees in the ordinary course of this Agreement: business and consistent with past practices in connection with terminations of employment), (AE) adoptterminate the employment of any corporate officers, terminateexecutive officers or Xxxxxx MCA Employees other than for cause, establish (F) amend any performance targets with respect to any outstanding bonus or enter into equity awards, (G) increase the funding obligation or contribution rate of any Meadow Xxxxxx Benefit Plan, Plan subject to Title IV of ERISA other than in the Ordinary Course ordinary course of Business; business and consistent with past practices, or (BH) cause establish, adopt, enter into, amend or permit terminate any Meadow Xxxxxx Benefit Plan to be amended in or any material respectother plan, other than in trust, fund, policy or arrangement for the Ordinary Course benefit of Business; (C) increase any current or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its former directors, officers or employeesemployees or any of their beneficiaries, other than increases in base salary and annual cash bonus opportunities and payments made except, in the Ordinary Course case of Business or each of sub-clauses (DA) hire any officer or employee through (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(viH) of this Clause 5.1(b)(iii), as otherwise permitted pursuant to this Clause 5.1(b)(iii) or as required by existing written agreements or Xxxxxx Benefit Plans in effect as of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union date of this Agreement or labor organization, except as otherwise required by applicable Law;
(viiiiv) acquire any material asset or sellshall not, lease or otherwise irrevocably dispose of and shall not permit any of its Subsidiaries to, make any change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material assets items for financial accounting purposes that would materially affect the consolidated assets, liabilities or propertiesresults of operations of the Company, except as required by US GAAP, applicable Law or SEC policy;
(v) shall not, and shall not permit any of its Subsidiaries to, authorise or announce an intention to authorise, or grant enter into agreements with respect to, any Lien acquisitions of an equity interest in or a substantial portion of the assets of any person or any business or division thereof, or any mergers, consolidations or business combinations, except in respect of any mergers, consolidations or business combinations among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement), or pursuant to existing contracts set forth in Clause 5.1(b)(v) of the Xxxxxx Disclosure Schedule;
(vi) shall not amend the Xxxxxx Memorandum and Articles of Association, and shall not permit any of its Subsidiaries to adopt any material amendments to its Organisational Documents;
(vii) shall not, and shall not permit any of its Subsidiaries to, issue, deliver, grant, sell, pledge, dispose of or encumber, or authorise the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital, voting securities or other equity interest in Xxxxxx or any Subsidiaries or any securities convertible into or exchangeable for any such assets shares, voting securities or propertiesequity interest, or any rights, warrants or options to acquire any such shares in its capital, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Xxxxxx Option under any existing Xxxxxx Share Plan (except as otherwise provided by the express terms of any options outstanding on the date hereof), other than (A) issuances of Xxxxxx Shares in respect of any exercise of Xxxxxx Options or the vesting or settlement of Xxxxxx Share Awards outstanding on the date hereof, (B) withholding of Xxxxxx Shares to satisfy Tax obligations pertaining to the exercise of Xxxxxx Options or the vesting or settlement of Xxxxxx Share Awards or to satisfy the exercise price with respect to Xxxxxx Options or to effectuate an optionee direction upon exercise, (C) issuances of Xxxxxx Shares pursuant to Xxxxxx’x dividend reinvestment plan and (D) transactions among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement);
(viii) shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (A) acquisitions of Xxxxxx Shares tendered by holders of Xxxxxx Options and Xxxxxx Share Awards in order to satisfy obligations to pay the Ordinary Course of Businessexercise price and/or Tax withholding obligations with respect thereto and (B) transactions among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement);
(ix) sellshall not, assignand shall not permit any of its Subsidiaries to, transferredeem, licenserepurchase, sublicense prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise dispose become liable for or modify in any material respects the terms of any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any indebtedness for borrowed money among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material Intellectual Property Rights that are owned adverse tax consequences with respect to the transactions contemplated by this Agreement), (B) indebtedness for borrowed money incurred to replace, renew, extend, refinance or purported to be owned by Meadow refund any existing indebtedness for borrowed money of Xxxxxx or any of its Subsidiaries, (C) guarantees by Xxxxxx of indebtedness for borrowed money of Subsidiaries of Xxxxxx or exclusively licensed guarantees by Xxxxxx’x Subsidiaries of indebtedness for borrowed money of Xxxxxx or purported any Subsidiary of Xxxxxx, which indebtedness is incurred in compliance with this Clause 5.1(b)(ix), (D) indebtedness for borrowed money incurred pursuant to be exclusively licensed to Meadow agreements entered into by Xxxxxx or its SubsidiariesSubsidiaries in effect prior to the execution of this Agreement and set forth in Clause 5.1(b)(ix) of the Xxxxxx Disclosure Schedule, (E) transactions at the stated maturity of such indebtedness and required amortization or mandatory prepayments and (F) indebtedness for borrowed money not to exceed $50.0 million in aggregate principal amount outstanding at any time incurred by Xxxxxx or any of its Subsidiaries other than in accordance with sub-clauses (A) - (D), inclusive; provided that nothing contained herein shall prohibit Xxxxxx and its Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice;
(x) makeshall not, and shall not permit any of its Subsidiaries to, make any loans to any other person involving in excess of $5.0 million individually or $10.0 million in the aggregate, except (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) for loans among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries;
(xi) shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Xxxxxx Permitted Liens), any of its material properties or assets (including shares in the capital of its or their Subsidiaries), except (A) pursuant to existing agreements in effect prior to the execution of this Agreement, (B) in the case of Liens, as required in connection with any indebtedness permitted to be incurred pursuant to sub-clause (ix) hereof, (C) sales of inventory in the ordinary course of business, (D) for transactions involving less than $10.0 million individually and $50.0 million in the aggregate or (E) (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) for transactions among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries;
(xii) shall not, and shall not permit any of its Subsidiaries to, compromise or settle any material claim, litigation, investigation or proceeding, in each case made or pending against Xxxxxx or any of its Subsidiaries (for the avoidance of doubt, not including any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their officers and directors in their capacities as such, other than (A) the compromise or settlement of claims, litigation, investigations or proceedings of the type described in Clause 5.1(b)(xii)(A) of the Xxxxxx Disclosure Schedule (the “Clause 5.1(b)(xii)(A) Claims”), as set forth in Clause 5.1(b)(xii)(A) of the Xxxxxx Disclosure Schedule and (B) in the case of any other such claims, litigations, investigations or proceedings that are not Clause 5.1(b)(xii)(A) Claims, any such compromise or settlement that (x) is for an amount not to exceed, for any such compromise or settlement individually or in the aggregate, the applicable amounts set forth on Clause 5.1(b)(xii)(B) of the Xxxxxx Disclosure Schedule and (y) does not impose any material injunctive relief on Xxxxxx and its Subsidiaries, or otherwise as required by applicable Law or any judgment by a court of competent jurisdiction;
(xiii) shall not, and shall not permit any of its Subsidiaries to, make or change or revoke any material Tax election, fail to pay change any income method of Tax or other material Tax as such Tax becomes due and payableaccounting, file any amendment making any material change to any amended Tax Return, settle or compromise any income Tax audit or other proceeding relating to a material Tax liability amount of Taxes, agree to an extension or submit any voluntary disclosure applicationwaiver of the statute of limitations with respect to a material amount of Taxes, enter into any Tax allocation, sharing, indemnification or other similar closing agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other surrender any right to claim a material Taxes (other than pursuant to an extension amount of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxesrefund;
(xixiv) shall not, and shall not permit any of its Subsidiaries to, make any new capital expenditure or expenditures, or commit to do so, in excess of the amounts set forth in Clause 5.1(b)(xiv) of the Xxxxxx Disclosure Schedule;
(xv) except in the ordinary course of business consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, enter intointo any contract that would, if entered into prior to the date hereof, be a Xxxxxx Material Contract, or materially modify, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Xxxxxx Material Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned, in effect on each case as applicable, would reasonably be expected to impair in any material respect the date hereofability of Xxxxxx and its Subsidiaries, taken as a whole, to conduct their business as currently conducted;
(xiixvi) other than as required by Law shall not, and shall not permit any of its Subsidiaries to, alter any intercompany arrangements or GAAPagreements or the ownership structure among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries if such alterations, take individually or in the aggregate, would reasonably be expected to have material tax consequences to Xxxxxx or any action to change accounting policies or procedures;of its Subsidiaries; and
(xiiixvii) initiate or settle shall not, and shall not permit any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impedingits Subsidiaries to, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agree, resolve in writing or commit otherwise, to do take any of the foregoingforegoing actions.
Appears in 2 contracts
Samples: Transaction Agreement (Cooper Industries PLC), Transaction Agreement (Eaton Corp)
Conduct of Business by Xxxxxx. Except Xxxxxx covenants and agrees that, prior to the earlier of the time of the appointment or election to the Board of Directors of persons designated by the Offeror who represent a majority of the directors of Kimber (the “Effective Time”) or the termination of this Agreement, unless Invecture shall otherwise agree in writing or as otherwise (i) for matters set forth in Section 5.1(b) of the Meadow Disclosure Scheduleexpressly permitted or specifically contemplated by this Agreement, (ii) as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, or (viii) as may be consented to otherwise set forth in writing by Xxxx (which consent shall not be unreasonably withheldthe Disclosure Letter, delayed or conditioned), during the Pre-Closing Period, Meadow shallKimber will, and shall will cause each of its the Subsidiaries to:
(a) conduct their respective businesses in the ordinary course consistent with past practice in all material respects and in compliance with applicable Laws, and to use commercially reasonable efforts to conduct preserve intact their present business organization and goodwill, to preserve intact their respective real property interests, mining leases, mining concessions, mining claims, exploration permits or prospecting permits or other property, mineral or proprietary interests or rights or contractual or other legal rights and claims in good standing, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, distributors, employees and others having business in the Ordinary Course of Business. In additionrelationships with them;
(b) not split, and without limiting the generality of the foregoing, except for matters set forth in the Meadow Disclosure Schedule consolidate or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow shall not, and shall not permit reclassify any of its Subsidiaries tooutstanding shares nor undertake any other capital reorganization, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws):
(i) nor declare, accrue, set aside or pay any dividend dividends on or make any other distribution distributions on or in respect of any shares its outstanding shares, nor reduce capital in respect of its capital stock outstanding shares;
(c) not amend its notice of articles or repurchase, redeem articles or otherwise reacquire other comparable organizational documents or the terms of any shares of its capital stock outstanding securities, including any outstanding indebtedness;
(d) not issue or other sell or agree to issue or sell any securities (except repurchases from terminated employees, directors or consultants other than the issuance of Meadow or in connection with the payment of Common Shares upon the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans currently outstanding Options in accordance with the terms their terms), or redeem, offer to purchase or purchase any of such award in effect on the date of this Agreement)its outstanding securities;
(iie) without limiting the generality of Section 5.1(d) not authorize, approve, agree to issue, issue or award any Options under the Stock Option Plan or any other Convertible Securities;
(f) not enter into, create, declare, adopt, amend, vary or modify any bonus, target bonus, profit sharing, incentive, salary or other compensation, equity based award, pension, retirement, deferred compensation, severance, change in control, stock option, employment or other employee benefit plan, agreement, trust fund, award or arrangement for the benefit or welfare of any officer, director or employee, or similar rights or other benefits except for changes in compensation for employees (other than directors and officers) in the ordinary course and consistent with past practice;
(g) not acquire or dispose of any securities, except in the ordinary course of business consistent with past practice;
(h) not reorganize, amalgamate, combine or merge Kimber or the Subsidiaries with any other person;
(i) not acquire or commit to acquire any assets or group of related assets (through one or more related or unrelated acquisitions) having a value in excess of $100,000 in the aggregate;
(j) not incur, or commit to, capital expenditures in excess of $100,000 in the aggregate unless such capital expenditures have been approved prior to the date hereof by the Board of Directors in the ordinary course of business consistent with past practice or those items that are in the capital plan that forms part of Kimber’s 2013 budget as disclosed to the Offeror prior to the date hereof;
(k) not sell, issuelease, grantoption, modify, reprice, pledge encumber or otherwise dispose of of, or commit to sell, lease, option, encumber or authorize: (A) otherwise dispose of, or allow any capital stock or other security third party to encumber for a period of Meadowfive business days without contesting in good faith, any assets or group of its Subsidiaries related assets (through one or Merger Sub (except for shares more related or unrelated transactions) having a value in excess of Meadow Common Stock issued upon $100,000 in the valid exercise or conversion aggregate, excluding any sale of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock equipment in the ordinary course of business consistent with past practice or any other security; sale of any obsolete assets, or (C) transfer any instrument convertible into or exchangeable for any capital stock or other security of Meadow, interest in any of its the Subsidiaries or Merger Subto a third party;
(iiil) except as required not approve the grant of any power of attorney to give effect allow any person to anything in contemplation take any action on behalf of Kimber or the Closing, amend Subsidiaries or the amendment of any power of Meadow’s attorney allowing any person to take any action on behalf of Kimber or its the Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(ivm) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or not enter into a joint venture or complete any transaction not in the ordinary course of business or in accordance with any other entityplans previously disclosed in the Kimber Public Documents filed and available on SEDAR on or before the date hereof;
(An) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (Bi) not incur or guarantee commit to incur any indebtedness for borrowed money, (C) guarantee except for the borrowing of working capital in the ordinary course of business and consistent with past practices or issue any debt securities securities, (ii) not incur or commit to incur, or guarantee, endorse or otherwise become responsible for, any other material liability, obligation or indemnity or the obligation of othersany person other than the Subsidiaries, or (Diii) make any loans or advances to any person other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”)Subsidiaries;
(vio) not make any changes to existing tax or accounting methods, principles, practices or policies or internal controls other than as required by applicable Law or the terms of by IFRS;
(p) not pay, discharge or satisfy any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adoptmaterial claims, terminate, establish liabilities or enter into any Meadow Benefit Plan, obligations other than the payment, discharge or satisfaction, in the Ordinary Course ordinary course of Business; business consistent with past practice in accordance with their terms, of liabilities reflected or reserved against in Kimber’s financial statements as at and for the period ended June 30, 2013 or incurred in the ordinary course of business consistent with past practice;
(Bq) cause not engage in any transaction with any related parties other than with the Subsidiaries in the ordinary course of business consistent with past practice;
(r) not commence or permit settle or assign any Meadow Benefit Plan rights relating to be amended or any interest in any litigation, proceeding, claim, action, assessment or investigation that is material to Kimber and involving Kimber or any of the Subsidiaries or material asset of either;
(s) use commercially reasonable efforts to maintain and preserve all of its rights under each of its Concessions and Lands and under each of its Authorizations;
(t) not waive, release, grant, transfer, exercise, modify or amend in any material respect, other than in the Ordinary Course ordinary course of Business; business consistent with past practice, (Ci) increase any existing contractual rights in respect of any Concessions or modify Lands or joint ventures of Kimber, including but not limited to the amount grant of any royalty in respect of any Concessions or form of the wagesLands, salary(ii) any Authorization, commissionslease, concession, contract or other document, or bonus compensation payable to (iii) any of its directors, officers other material legal rights or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period)claims;
(viiu) recognize not propose or enter into any labor union agreement, arrangement, commitment, or labor organization, except as otherwise required by applicable Lawoffer with respect to a material joint venture or other mutual co-operation or distribution agreement;
(viiiv) acquire not enter into any material asset interest rate, currency or sellequity swaps, lease xxxxxx, derivatives or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except other similar financial instruments other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ixw) selluse commercially reasonable efforts to cause its current insurance (or re-insurance) policies within its control or any of the coverage thereunder not to lapse, assignunless simultaneously with such termination, transfercancellation or lapse, licensereplacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, sublicense terminated or otherwise dispose of any material Intellectual Property Rights that lapsed policies for substantially similar premiums are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiariesin full force and effect;
(x) makenot increase any coverage under any directors’ and officers’ insurance policy other than as contemplated in Section 11.3;
(y) not acquire or agree to acquire (by merger, change amalgamation, arrangement, acquisition of stock or revoke assets or otherwise) any person or division of any person or make any investment either by purchase of shares or securities, contributions of capital (other than to the Subsidiaries), property transfer or purchase of any property or assets of any other person, except for purchases of equipment in the ordinary course of business consistent with past practice, and except for capital expenditures permitted by Section 5.1(j);
(z) not adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of Kimber or any Subsidiary;
(aa) duly and timely file all material forms, reports, schedules, statements and other documents required to be filed pursuant to any applicable corporate Laws or Applicable Securities Laws, provided however that Kimber shall in any event consult with the Offeror prior to making any filing required pursuant to Applicable Securities Laws or issuing any press release in relation to any of the Concessions, providing in such cases Invecture and the Offeror with a reasonable opportunity to review and comment on any such filing or press release, recognizing that whether or not such comments are appropriate will be determined by Kimber, acting reasonably;
(i) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects; (ii) timely withhold, collect, remit and pay all Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable except for any Taxes contested in good faith pursuant to applicable Laws; (iii) not make or rescind any material Tax election, fail express or deemed election relating to pay Taxes; (iv) not make a request for a tax ruling or enter into a closing agreement with any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, taxing authorities; (v) not settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes; and (vi) not change in any material respect any of its methods of reporting income, deductions or accounting for income Tax tax purposes from those employed in the preparation of its income tax return for the tax year ending June 30, 2013 except as may be required by applicable Laws;
(cc) notify Invecture immediately orally and then promptly in writing of any Material Adverse Change in relation to Kimber and of any material governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(dd) except as contemplated in Section 6.1, not enter into any transaction or perform any act or fail to perform any act that might interfere with, delay, or be materially inconsistent with the successful completion of the acquisition of Common Shares by Invecture pursuant to the Offer or the successful completion of an Alternative Transaction, a Compulsory Acquisition or Subsequent Acquisition Transaction or which would render, or which may reasonably be expected to render, untrue or inaccurate (without giving effect to, applying or taking into consideration any materiality or Material Adverse Change qualification already contained within such representation or warranty) in any material respect any of Kimber’s representations and warranties set forth in this Agreement;
(ee) without limiting the generality of the foregoing, vote or cause to be voted all shares and other securities held by Kimber or a Subsidiary, and use commercially reasonable efforts to cause all nominees of Kimber on the board of directors or any management committee or other material Tax liability committee of a Subsidiary to vote, in a manner consistent with all of the foregoing sections, including voting against, or submit causing such persons to vote against, any voluntary disclosure applicationresolution to approve any act, agreement or transaction prohibited by any of the foregoing sections;
(ff) subject to Section 6.1, use commercially reasonable efforts to enforce any confidentiality and/or standstill agreements or provisions it has with any person other than Invecture and not waive, relieve any party of or amend any such agreements and/or provisions in any way, provided that, for the avoidance of doubt, any automatic release from the standstill provisions of any such agreement in accordance with its terms shall not constitute a breach of this Section 5.1(ff); (gg) not offer, promise, pay, authorize or take up any act in furtherance of any offer, promise, payment or authorization of payment of anything of value, directly or indirectly, to any Government Official or Person of Concern for the purpose of securing discretionary action or inaction or a decision of a Government Official(s), influence over discretionary action of a Government Official(s), or any improper advantage; or (ii) take any action which is otherwise inconsistent with or prohibited by the substantive prohibitions or requirements of the Corruption of Foreign Public Officials Act (Canada), the United Kingdom Xxxxxxx Xxx 0000, the U.S. Foreign Corrupt Practices Act, or similar applicable Laws of any other jurisdiction prohibiting corruption, bribery and money laundering, in connection with any of their business; and
(hh) not announce an intention, enter into any Tax allocation, sharing, indemnification formal or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months)informal agreement, or adopt or change any material accounting method in respect of Taxes;
(xi) enter into, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered otherwise make a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agree, resolve or commit commitment to do any of the foregoingthings prohibited by any of the foregoing subsections.
Appears in 1 contract
Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) of the Meadow Parent Disclosure Schedule, (ii) as Letter or otherwise expressly permitted or expressly contemplated by this Agreement (including to effect any of the transactions contemplated hereby) or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, Law or (v) as may be consented to in writing by Xxxx with the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), during the Pre-Closing Period, Meadow Parent shall, and shall cause each of its Subsidiaries Parent Subsidiary to, (i) use commercially reasonable efforts to conduct its business in the Ordinary Course of Businessordinary course consistent with past practice in all material respects and (ii) use commercially reasonable efforts to preserve intact its business organization and material business relationships. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Meadow Parent Disclosure Schedule Letter or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx the Company (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow Parent shall not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following (provided that no such consent of Iris shall Parent may be required to the extent Meadow the Company reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of may violate any applicable Laws):
(i) (A) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock, property or any combination thereof) in respect of of, any shares of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect wholly owned Parent Subsidiary to its parent, (B) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities or (C) repurchase, redeem or otherwise reacquire acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than (except repurchases from terminated employees1) the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent stock plan, directors or consultants (2) the acquisition by Parent of Meadow or awards granted pursuant to any Parent stock plan in connection with the payment forfeiture of such awards, and (3) the acquisition by the Parent of Parent Common Stock outstanding as of the exercise price and/or withholding Taxes incurred date hereof pursuant to Parent’s right (under written commitments in effect as of the date hereof) to acquire shares of Parent Common Stock held by any officer or other employee, or individual who is an independent contractor, consultant or director, of or to any of Parent or any Parent Subsidiary upon the exercisetermination of such Person’s employment or engagement by Parent or any Parent Subsidiary;
(ii) sell, settlement exclusively license, mortgage or vesting otherwise encumber or subject to any Lien (other than any Permitted Lien), or otherwise dispose of any award properties, rights or purchase rights granted under assets (including any Parent IP) that are material to Parent and its Subsidiaries taken as a whole (other than sales and non-exclusive licenses of products or services in the Meadow Stock Plans in accordance ordinary course of business consistent with the terms of such award past practice), except (A) pursuant to Contracts or commitments in effect on the date of this Agreement (or entered into after the date of this Agreement without violating the terms of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any optionof the foregoing with respect to inventory in the ordinary course of business consistent with past practice, warrant (C) any of the foregoing with respect to obsolete or right worthless equipment in the ordinary course of business consistent with past practice or (D) for any transactions among Parent and the wholly owned Parent Subsidiaries in the ordinary course of business consistent with past practice;
(iii) other than in the ordinary course of business, materially amend or modify any Parent Material Contract or enter into, materially amend or modify any Contract that would be a Parent Material Contract if it had been entered into prior to the date of this Agreement;
(iv) issue, sell or agree to issue or sell (1) (A) shares of capital stock of the Parent, (B) other equity interests or voting securities of the Parent, (C) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Parent, or (D) any warrants, calls, options or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Parent, except (i) in any other security; such case for employee compensation payments in the ordinary course of business of Parent consistent with past practice, and (ii) that in the aggregate would not equal or (C) any instrument convertible into or exchangeable for any exceed 20% of Parent’s outstanding capital stock or other security as of Meadow, any of its Subsidiaries or Merger Sub;
(iii) except as required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: , in each case excluding (x) the share issuable as Merger Consideration, and (y) in each case of (A)-(C), excluding shares of Parent Common Stock issuable upon the exercise of options or other equity awards outstanding under the Parent’s equity incentive or stock purchase plans in accordance with their respective terms as of the date hereof, or (2) (a) shares of capital stock of any Parent Subsidiary, (b) other equity interests or voting securities of any Parent Subsidiary, (c) any securities convertible into or exchange able or exercisable for capital stock or voting securities of, or other equity interests in, any Parent Subsidiary, or (d) any warrants, calls, options or other rights to acquire any capital stock or securities of, or other equity interests in, any Parent Subsidiary; or
(v) acquire another business or restructure, reorganize or completely or partially liquidate, in each case, to the extent that such action would, or would reasonably be expected to, (A) adoptrequire the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, terminate, establish or enter into any Meadow Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries;
(x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;
(xi) enter intoprevent, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing delay or materially impeding, interfering with, hindering or delaying impair the consummation of the Contemplated Transactions; or
(xv) agree, resolve or commit to do any of the foregoingMerger.
Appears in 1 contract
Samples: Merger Agreement (Metacrine, Inc.)
Conduct of Business by Xxxxxx. Except (ia) for matters set forth in Section 5.1(bXxxxxx covenants and agrees that, during the Interim Period, except (1) of to the Meadow Disclosure Schedule, (ii) as expressly permitted by or required in accordance this Agreement, (iii) as extent required by applicable Law, (iv) for COVID-19 Measures and Responses, or (v2) as may be consented to in advance in writing by Xxxx Hammer (which consent shall not be unreasonably withheld, delayed or conditioned), during (3) as may be expressly contemplated, expressly required or expressly permitted by this Agreement or (4) as set forth in Section 6.2(a) or Section 6.2(b) of the Pre-Closing PeriodXxxxxx Disclosure Letter, Meadow Xxxxxx shall, and shall cause each of its the Xxxxxx Subsidiaries to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use commercially reasonable efforts to conduct preserve intact its current business in the Ordinary Course of Business. In additionorganization, goodwill, ongoing businesses and without significant relationships with third parties.
(b) Without limiting the generality of the foregoing, Xxxxxx covenants and agrees that, during the Interim Period, except for matters set forth in (1) to the Meadow Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or extent required by applicable Law or with the prior written consent of Xxxx Law, (2) as may be consented to in advance in writing by Hammer (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during (3) as may be expressly contemplated, expressly required or expressly permitted by this Agreement or (4) as set forth in Section 6.2(a) or Section 6.2(b) of the Pre-Closing PeriodXxxxxx Disclosure Letter, Meadow Xxxxxx shall not, and shall not cause or permit any of its Subsidiaries Xxxxxx Subsidiary to, do any of the following (provided that no such consent of Iris shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Laws):following:
(i) amend or propose to amend (A) the Xxxxxx Governing Documents or (B) such equivalent organizational or governing documents of any Xxxxxx Subsidiary material to Xxxxxx and the Xxxxxx Subsidiaries;
(ii) adjust, split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Xxxxxx or any Xxxxxx Subsidiary (other than any Wholly Owned Xxxxxx Subsidiary);
(iii) declare, accrue, set aside or pay any dividend on or make any other distribution distributions (whether in cash, stock, property or otherwise) with respect of any to shares of its capital stock of Xxxxxx or repurchaseany Xxxxxx Subsidiary or other equity securities or ownership interests in Xxxxxx or any Xxxxxx Subsidiary, redeem except for (A) the declaration and payment of dividends or other distributions to Xxxxxx by any directly or indirectly Wholly Owned Xxxxxx Subsidiary and (B) distributions by any Xxxxxx Subsidiary that is not wholly owned, directly or indirectly, by Xxxxxx, in accordance with the requirements of the organizational documents of such Xxxxxx;
(iv) redeem, repurchase or otherwise reacquire acquire, directly or indirectly, any shares of its capital stock or other securities equity interests of Xxxxxx or a Xxxxxx Subsidiary (except repurchases from terminated employees, directors or consultants other than the acceptance of Meadow or shares of Xxxxxx Common Stock as payment for withholding taxes incurred in connection with the payment vesting or settlement of equity awards granted pursuant to the Xxxxxx Equity Incentive Plans);
(v) except for transactions among Xxxxxx and one or more Wholly Owned Xxxxxx Subsidiaries or among one or more Wholly Owned Xxxxxx Subsidiaries, issue, sell, pledge, dispose, encumber or grant any shares of Xxxxxx or any of the exercise price and/or withholding Taxes incurred Xxxxxx Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Xxxxxx or any of the Xxxxxx Subsidiaries’ capital stock or other equity interests, other than (A) the issuance of Xxxxxx Common Stock upon the exerciseexercise of stock options outstanding as of the date hereof in accordance with their terms, settlement or vesting (B) the issuance of stock options or nonvested common stock awards pursuant to the Xxxxxx Equity Incentive Plans in the ordinary course of business consistent with past practice and subject to the limitations set forth in Section 6.2(b)(v) of the Xxxxxx Disclosure Letter;
(vi) acquire or agree to acquire (including by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, in each case with a value or purchase price that, individually or in the aggregate, exceeds $5,000,000;
(vii) sell, mortgage, pledge, lease, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets, in each case with a value or purchase price that, individually or in the aggregate, exceeds $1,000,000, except in the ordinary course of business consistent with past practice;
(viii) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any award debt securities of Xxxxxx or purchase any of the Xxxxxx Subsidiaries, except (A) funding any transactions permitted by this Section 6.2(b), (B) Indebtedness that does not, in the aggregate, exceed $1,000,000, and (C) refinancing of existing Indebtedness (provided, that the terms of such new Indebtedness shall not be materially more onerous on Xxxxxx compared to the existing Indebtedness and the principal amount of such replacement Indebtedness shall not be materially greater than the Indebtedness it is replacing);
(ix) except in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, Affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than by Xxxxxx or a Wholly Owned Xxxxxx Subsidiary to Xxxxxx or a Wholly Owned Xxxxxx Subsidiary;
(x) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights granted under or claims under, any Xxxxxx Material Contract (or any Contract that, if existing as of the Meadow Stock Plans date hereof, would be a Xxxxxx Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Xxxxxx Material Contract that occurs automatically without any action (other than notice of renewal) by Xxxxxx or any Xxxxxx Subsidiary, (B) as may be reasonably necessary to comply with the terms of this Agreement or (C) in the ordinary course of business consistent with past practice;
(xi) make any payment, direct or indirect, of any material liability of Xxxxxx or any Xxxxxx Subsidiary before the same comes due in accordance with its terms, other than (A) in the ordinary course of business consistent with past practice or (B) in connection with dispositions or refinancings of any Indebtedness otherwise permitted hereunder;
(xii) waive, release, assign, settle or compromise any claim or Action against Xxxxxx or any Xxxxxx Subsidiary, other than waivers, releases, assignments, settlements or compromises that (A) with respect to the payment of monetary damages, involve only the payment of monetary damages (excluding any portion of such award payment payable under an existing property-level insurance policy) (x) equal to or less than the amounts specifically reserved with respect thereto on the most recent balance sheet of Xxxxxx included in effect on the Xxxxxx SEC Documents filed and publicly available prior to the date of this AgreementAgreement or (y) that do not exceed $500,000 individually or $1,000,000 in the aggregate, (B) do not involve the imposition of injunctive relief against Xxxxxx or any Xxxxxx Subsidiary or the Surviving Entity, (C) do not provide for any admission of material liability by Xxxxxx or any of the Xxxxxx Subsidiaries, excluding in each case any such matter relating to Taxes (which, for the avoidance of doubt, shall be covered by Section 6.2(b)(xviii)), and (D) with respect to any Action involving any present, former or purported holder or group of holders of Xxxxxx Common Stock, are made in accordance with Section 7.6(c);
(iixiii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) hire or terminate any capital stock officer or other security director of MeadowXxxxxx or any Xxxxxx Subsidiary, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) increase in any optionmanner the amount, warrant rate or right to acquire terms of compensation or benefits of any capital stock of Xxxxxx’x directors or any other security; officers, or (C) enter into, adopt, amend or terminate any instrument convertible into employment, bonus, severance or exchangeable for any capital stock retirement Contract or Xxxxxx Benefit Plan or other security compensation or employee benefits arrangement, except in the ordinary course of Meadow, any of its Subsidiaries business consistent with past practice or Merger Sub;
(iii) except as may be required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture comply with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viiixiv) acquire fail to maintain all financial books and records in all material respects in accordance with GAAP or make any material asset change to its methods of accounting in effect at June 30, 2017, except as required by a change in GAAP or sell, lease or otherwise irrevocably dispose of any of its material assets or propertiesin applicable Law, or grant make any Lien change with respect to such assets accounting policies, principles or properties, except in practices unless required by GAAP or the Ordinary Course of BusinessSEC;
(ixxv) sell, assign, transfer, license, sublicense or otherwise dispose enter into any new line of any business that would be material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Xxxxxx and the Xxxxxx Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiariestaken as a whole;
(xxvi) form any new funds, joint ventures or other pooled investment vehicles;
(xvii) fail to duly and timely file all material reports and other material documents required to be filed with any Governmental Authority, subject to extensions permitted by Law;
(xviii) make, change or revoke rescind any material election relating to Taxes, change a material method of Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payableaccounting, file any amendment making or amend any material change to any Tax Return, settle or compromise any income material federal, state, local or foreign Tax liability, audit, claim or other material Tax liability or submit any voluntary disclosure applicationassessment, enter into any material closing agreement related to Taxes, or knowingly surrender any right to claim any material Tax allocationrefund;
(xix) take any action that would, sharingor fail to take any action, indemnification the failure of which would, reasonably be expected to prevent or other similar agreement impede the Merger from qualifying as a “reorganization” within the meaning of Sections 368(a) of the Code;
(xx) make or arrangement commit to make any recurring capital expenditures that are in excess of $500,000 per quarter in the aggregate;
(xxi) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except in connection with any transaction permitted by Section 6.2(b)(vi) in a manner that would not reasonably be expected to be materially adverse to Xxxxxx or to prevent or impair the ability of Xxxxxx or Merger Sub to consummate the Merger;
(xxii) make any payment, distribution or transfer of assets to its Affiliates (other than customary commercial contracts entered into Xxxxxx and any Xxxxxx Subsidiary) except in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;such amount and as expressly contemplated by this Agreement; or
(xixxiii) enter into, materially amend or terminate any Meadow Material Contractauthorize, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agree, resolve or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Almost Family Inc)
Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) During the period from the date of this Agreement to the Meadow Disclosure ScheduleEffective Time, (ii) except as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for COVID-19 Measures and Responses, or (v) as may be consented to in writing by Xxxx (which consent shall not be unreasonably withheldthe Company, delayed or conditioned), during the Pre-Closing Period, Meadow Parent shall, and shall cause each of its Subsidiaries Parent Subsidiary to, use commercially reasonable efforts to conduct its business in the Ordinary Course usual, regular and ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact its current business organization, keep available the services of Businessits current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them and to comply in all material respects with all Laws, Judgments and Consents of and Permits with all Governmental Entities applicable to them to the end that its goodwill and ongoing business shall not be impaired in any material respect at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Meadow Parent Disclosure Schedule Letter (with specific reference to the relevant sections of the covenants) or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx (which shall not be unreasonably withheld, conditioned or delayed)Agreement, during the Pre-Closing Periodperiod from the date of this Agreement to the Effective Time, Meadow Parent shall not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company (provided that no such consent not to be unreasonably withheld or delayed in the case of Iris shall be required subsections (ix), (x), (xi), (xiii) and (xiv) and, to the extent Meadow reasonably believesapplicable, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Lawssubsection (xvi)):
(i) (A) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or property) in respect of any shares of its capital stock or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases from terminated employees, directors or consultants of Meadow or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans in accordance with the terms of such award in effect on the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadowof, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right to acquire any capital stock or any other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub;
(iii) except as required to give effect to anything in contemplation of the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Planstock, other than in the Ordinary Course of Business; (B1) cause dividends and distributions by a direct or permit any Meadow Benefit Plan indirect wholly owned Parent Subsidiary to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ix) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its Subsidiaries;
(x) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;
(xi) enter into, materially amend or terminate any Meadow Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiii) initiate or settle any Legal Proceeding;
(xiv) enter into or amend any Contract for the purpose of preventing or materially impeding, interfering with, hindering or delaying the consummation of the Contemplated Transactions; or
(xv) agree, resolve or commit to do any of the foregoing.parent and,
Appears in 1 contract
Samples: Merger Agreement
Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) From and after the date hereof until the earlier of the Meadow Disclosure Schedule, (ii) as expressly permitted by or required Effective Time and the termination of this Agreement in accordance this Agreementwith its terms, except as (iiiA) as may be required by applicable Law, (ivB) for COVID-19 Measures and Responses, or (v) as may be consented to in writing in advance by Xxxx Rook (which consent shall not be unreasonably withheld, delayed or conditioned), during (C) otherwise specifically required or prohibited by this Agreement or (D) set forth in Section 5.1(b) of the Pre-Closing PeriodXxxxxx Disclosure Letter, Meadow Xxxxxx (x) shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct (i) carry on its business in the Ordinary Course Course, (ii) use reasonable best efforts to preserve intact the material components of Business. In additionits business organization, (iii) use reasonable best efforts to preserve relationships with key customers, suppliers and without limiting others having material business dealings with it, (iv) use reasonable best efforts to preserve its material assets and properties and (v) hold its 2017 annual meeting prior to the generality of the foregoing, except for matters set forth in the Meadow Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or Effective Time with the prior written consent of Xxxx meeting date consistent with past practice, (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow y) shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided it being understood that no if any action is permitted by any of the following subsections pursuant to an exception to conduct that would otherwise be prohibited, such consent of Iris action shall be required to the extent Meadow reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of any applicable Lawspermitted under this Section 5.1(b)):
(i) (A) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or property) in respect of of, any shares of its capital stock or repurchaseother equity interests, except for dividends by a direct or indirect wholly owned Subsidiary of Xxxxxx to its parent, (B) purchase, redeem or otherwise reacquire acquire shares of capital stock or other equity interests or rights of Xxxxxx or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests or rights, other than (x) the acquisition of shares of capital stock or other equity interests or rights of a direct or indirect wholly owned Subsidiary of Xxxxxx from Xxxxxx or any other direct or indirect wholly owned Subsidiary of Xxxxxx, or (y) the acquisition of Xxxxxx Common Stock upon the exercise or settlement of Xxxxxx Equity Awards outstanding as of the date hereof or granted in accordance with the proviso in clause (ii) below, or (C) split, combine, reclassify, subdivide or otherwise amend the terms of any of its capital stock or other equity interests or rights 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 other equity interests or rights, other than as permitted by the proviso in clause (ii) below;
(ii) except for transactions solely among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries, issue, sell, pledge, dispose of, encumber, transfer, award or grant any shares of its or its Subsidiaries’ capital stock, or any options, warrants, convertible securities (except repurchases from terminated employeesor other rights of any kind to acquire any shares of its or its Subsidiaries’ capital stock; provided, directors or consultants of Meadow or in connection with the payment of the exercise price and/or withholding Taxes incurred however, that Xxxxxx may issue shares upon the exercise, payment or settlement or vesting of any award or purchase rights granted under the Meadow Stock Plans Xxxxxx Equity Awards outstanding (in accordance with the terms thereof in effect) as of such award the date hereof or granted after the date hereof as permitted under Section 5.1(b)(ii) of the Xxxxxx Disclosure Letter and may xxxxx Xxxxxx Equity Awards after the date hereof as permitted under Section 5.1(b)(ii) of the Xxxxxx Disclosure Letter that will not vest as a result of the Merger;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, in any material respect, its or any of its Subsidiaries’ certificate of incorporation or bylaws (or similar organizational documents);
(iv) acquire or agree to acquire by merging or consolidating with, or purchasing the equity or a substantial portion of the assets of, any corporation, partnership, association or other business organization or division thereof other than mergers, consolidations or purchases of equity or assets solely among Xxxxxx and its wholly owned Subsidiaries or among Xxxxxx’x wholly owned Subsidiaries;
(v) directly or indirectly sell, pledge, transfer, lease, license, abandon, allow to lapse or subject to any Lien other than Xxxxxx Permitted Liens or otherwise dispose of any of its properties, assets or rights, except (A) sales of inventory in the Ordinary Course of business, (B) pursuant to agreements existing as of the date hereof and listed on Section 5.1(b)(v) of the Xxxxxx Disclosure Letter, (C) dispositions of obsolete or worn-out assets in the Ordinary Course of business or (D) properties, assets or rights with a fair market value which do not exceed $5,000,000 individually or $15,000,000 in the aggregate, (D) non-exclusive licenses of Intellectual Property Rights, or (E) abandoning or allowing to lapse any Intellectual Property Rights in the Ordinary Course of business or that are not material to the business of Rook or its Subsidiaries;
(vi) adopt or enter into a plan of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, except for transactions solely among Xxxxxx’x wholly owned Subsidiaries or in compliance with Section 5.2;
(vii) incur or commit to incur, create, prepay, refinance, assume or guarantee for any Person, any Indebtedness, or amend, modify or refinance any Indebtedness, except for Indebtedness incurred (A) under Xxxxxx’x existing credit facilities in the Ordinary Course of business, (B) pursuant to agreements in effect on prior to the execution of this Agreement, (C) under letters of credit entered into in the Ordinary Course of business in connection with transactions otherwise permitted by this Agreement or (D) leases for new revenue equipment entered into in the Ordinary Course;
(viii) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto except capital expenditures that: (A) are provided for in Xxxxxx’x capital expenditure budget made available to Rook prior to the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge ; or otherwise dispose of or encumber or authorize: (A) any capital stock or other security of Meadow, any of its Subsidiaries or Merger Sub (except for shares of Meadow Common Stock issued upon the valid exercise or conversion of outstanding Meadow Options or Meadow Warrants); (B) any option, warrant or right when added to acquire any all other capital stock or any other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security expenditures made on behalf of Meadow, any all of Xxxxxx and its Subsidiaries or Merger Sub;
(iii) except as required to give effect to anything in contemplation of since the Closing, amend any of Meadow’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of 110% of the budgeted capital expenditure amounts set forth in Meadow’s operating budget delivered to Iris concurrently with the execution date of this Agreement (the “Meadow Budget”);
(vi) other than as required by applicable Law or the terms of any Meadow Benefit Plan as but not provided for in effect on Xxxxxx’x capital expenditure budget made available to Rook prior to the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Benefit Plan, other than does not exceed $5,000,000 in the Ordinary Course of Business; (B) cause or permit any Meadow Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business or (D) hire any officer or employee (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Periodaggregate);
(viiix) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
business, (ixA) sellmaterially modify, assignamend, transferrenew, licenseterminate, sublicense cancel or extend any Xxxxxx Material Contract (other than terminations thereof upon the expiration of any such Xxxxxx Material Contract in accordance with its terms), (B) enter into any Contract that if in effect on the date hereof would be a Xxxxxx Material Contract or (C) waive, release, assign or otherwise dispose of forego any material Intellectual Property Rights that are owned right or purported to be owned by Meadow claim of Xxxxxx or any of its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow or its SubsidiariesSubsidiaries under any Xxxxxx Material Contract;
(x) make any material change to its financial or Tax accounting methods, or procedures except (A) insofar as may have been required by GAAP (or any interpretation thereof), SEC rules and regulations or a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization), (B) as disclosed in the Xxxxxx SEC Documents filed with the SEC prior to the date of this Agreement or (C) as required by a change in applicable Law;
(xi) (A) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, (B) settle or compromise any income Tax audit, assessment or other claim for material Taxes, (C) amend any material Tax liability or submit any voluntary disclosure applicationReturn, (D) enter into any closing agreement with any Governmental Entity regarding material Taxes or request any material Tax allocationruling from any Governmental Entity, sharing(E) surrender any claim for a refund or offset of material Taxes or (F) waive the application of any statute of limitations regarding the assessment or collection of any material Tax;
(xii) enter into any Contract or transaction of a type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xiii) except as required pursuant to existing written agreements or Xxxxxx Plans in effect as of the date hereof, indemnification (A) adopt, enter into, amend, modify or terminate, or take any action to accelerate the funding vesting or payment of any compensation or benefit under, any Xxxxxx Plan, (B) increase the compensation or other similar agreement benefits payable or arrangement to become payable to directors, employees, consultants or independent contractors of Xxxxxx or any of its Subsidiaries except (other than customary commercial contracts entered into 1) for annual merit increases in base compensation in the Ordinary Course of Business business, (2) as expressly permitted by the principal subject matter of which is not proviso in clause (ii) above, (3) for increases in base compensation due to the allocation of Taxes)promotion, request or consent to any extension or waiver increased certification and/or expanded responsibilities of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted non-officer employee in the Ordinary Course of Business business and (4) for increases in base compensation to non-officer employees in the Ordinary Course of not more than seven months)business pursuant to existing employment agreements, (C) grant any severance, change of control, retention or termination pay to, or adopt or change any material accounting method in respect of Taxes;
(xi) enter into, materially or amend or terminate modify, any Meadow Material Contractseverance, change of control, retention or termination agreement or arrangement with, any director, employee, consultant or independent contractor of Xxxxxx or any of its Subsidiaries, other than in the Ordinary Course of business, (D) enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xii) written agreement with an employee, other than as required by Law offer letters offering at-will employment other than in the Ordinary Course of business and providing for sign on bonuses of no greater than $5,000 in the Ordinary Course of business; provided that such offer letters do not provide for severance, guaranteed bonuses (other than sign on bonuses within the parameters described above) or GAAPretention bonuses or (E) establish, take adopt, enter into, modify or amend any action to change accounting policies CBA, plan, trust, fund, policy or procedures;
(xiii) initiate arrangement for the benefit of any current or settle former directors or employees or any Legal Proceedingof their beneficiaries;
(xiv) enter into implement or amend announce any Contract material reduction in labor force or engage in any action that would trigger any notice requirements under the WARN Act;
(xv) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees;
(xvi) waive, release, settle or agree to the purpose entry of preventing any order, in respect of any claim or materially impedingAction of or against Xxxxxx or any of its Subsidiaries, interfering withother than (a) settlements or orders that involve only the payment of monetary damages that do not exceed $10,000,000 individually or $50,000,000 in the aggregate, hindering (b) claims arising between the parties to this Agreement or delaying (c) in compliance with Section 5.8 (it being understood that Xxxxxx shall reasonably consult with Rook in connection with any proposed settlement of any material Action);
(xvii) fail to maintain with financially responsible insurance companies (or through self-insurance not inconsistent with past practice), insurance in such amounts and against such risks and losses consistent with past practice;
(xviii) fail to timely file any material report required to be filed by Xxxxxx or any of its Subsidiaries with the consummation of the Contemplated TransactionsSEC or any other Governmental Entity; or
(xvxix) agreeauthorize any of, or commit, resolve or commit agree to do take any of of, the foregoingforegoing actions.
Appears in 1 contract
Conduct of Business by Xxxxxx. Except (i) for matters set forth in Section 5.1(b) of the Meadow Parent Disclosure Schedule, (ii) as expressly permitted by or required in accordance this Agreement, (iii) as required by applicable Law, (iv) for in connection with the COVID-19 Measures pandemic, to the extent reasonably necessary, (A) to protect the health and Responsessafety of Parent’s or any of its Subsidiaries’ employees, (B) to respond to third party supply or service disruptions caused by the COVID-19 pandemic or (C) as required by any applicable Law, directive or guideline from any Governmental Entity arising out of, or otherwise related to, the COVID-19 pandemic (including any response to COVID-19), or (v) as may be consented to in writing by Xxxx the Company (which consent shall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period, Meadow Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in the Ordinary Course of Business. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Meadow Parent Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Xxxx the Company (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Meadow Parent shall not, and shall not permit any of its Subsidiaries to, do any of the following (provided that no such consent of Iris shall the Company may be required to the extent Meadow Parent reasonably believes, based on its outside counsel’s advice, that obtaining such consent constitutes a violation of may violate any applicable Laws):
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases from terminated employees, directors or consultants of Meadow Parent or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Meadow Parent Stock Plans in accordance with the terms of such award in effect on the date of this Agreement);
(ii) sell, issue, grant, modify, reprice, pledge or otherwise dispose of or encumber or authorizeauthorize any of the foregoing with respect to: (A) any capital stock or other security of Meadow, any of its Subsidiaries Parent or Merger Sub (except for shares of Meadow Parent Common Stock issued upon the valid exercise or conversion of outstanding Meadow Parent Options or Meadow Parent Warrants); (B) any option, warrant or right to acquire any capital stock or any other security, other than stock options granted to employees and service providers in the Ordinary Course of Business which are included in the calculation of the Exchange Ratio; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Meadow, any of its Subsidiaries Parent or Merger Sub;
(iii) except as required to give effect to anything in contemplation of the Closing, amend any of MeadowParent’s or its Subsidiaries’ Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except for the Contemplated Transactions;
(iv) other than Merger Sub, form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity;
(A) lend money to any Person (except for the advancement of expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of one hundred ten percent (110% %) of the budgeted capital expenditure amounts set forth in MeadowParent’s operating budget delivered to Iris the Company concurrently with the execution of this Agreement (the “Meadow Parent Budget”);
(vi) other Other than as required by applicable Law or the terms of any Meadow Parent Benefit Plan as in effect on the date of this Agreement: (A) adopt, terminate, establish or enter into any Meadow Parent Benefit Plan, other than in the Ordinary Course of Business; (B) cause or permit any Meadow Parent Benefit Plan to be amended in any material respect, other than in the Ordinary Course of Business; (C) increase or modify the amount or form of the wages, salary, commissions, or bonus compensation payable to any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business employees or (D) hire any (x) officer or (y) employee whose annual base salary is or is expected to be more than $150,000 per year (other than ordinary course replacement of departed employees or officers in the positions set forth on Section 5.1(b)(vi) of the Meadow Disclosure Schedule during the Pre-Closing Period);
(vii) recognize any labor union or labor organization, except as otherwise required by applicable Law;
(viii) enter into any material transaction;
(ix) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its material assets or properties, or grant any Lien with respect to such assets or properties, except in the Ordinary Course of Business;
(ixx) sell, assign, transfer, license, sublicense or otherwise dispose of any material Intellectual Property Rights that are owned or purported to be owned by Meadow Parent or its Subsidiaries, or exclusively licensed or purported to be exclusively licensed to Meadow Parent or its Subsidiaries;
(xxi) make, change or revoke any material Tax election, fail to pay any income Tax or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income Tax or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not the allocation of Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income Tax or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven months), or adopt or change any material accounting method in respect of Taxes;
(xixii) enter into, materially amend or terminate any Meadow Parent Material Contract, or enter into any Contract that would be considered a Meadow Material Contract if in effect on the date hereof;
(xiixiii) except as set forth in the Parent Budget and for the incurrence or payment of any Transaction Expenses, make any expenditures, incur any liabilities or discharge or satisfy any liabilities, in each case, in amounts that exceed the aggregate amount of the Parent Budget by $150,000;
(xiv) other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xiiixv) initiate or settle any Legal Proceeding;
(xivxvi) enter into or amend any a Contract for the purpose of preventing that would reasonably be expected to prevent or materially impedingimpede, interfering interfere with, hindering hinder or delaying delay the consummation of the Contemplated Transactions; or
(xvxvii) agree, resolve or commit to do any of the foregoing.
Appears in 1 contract
