Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following: (a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC; (b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC; (c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof; (d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock; (e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability; (f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC; (g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC; (h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction); (i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature; (j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment; (k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing); (l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC; (m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed); (n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement; (o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms); (p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or (q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 2 contracts
Samples: Business Combination Agreement (Valens Semiconductor Ltd.), Business Combination Agreement (PTK Acquisition Corp.)
Conduct of Business of SPAC. From (a) Unless the Company and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented Pubco shall otherwise consent in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of during the following:
(a) adopt any amendmentsInterim Period, supplements, restatements or modifications to the Trust Agreement, Warrant except as expressly contemplated by this Agreement or the Governing Ancillary Documents (including as contemplated by the Transaction Financing), as required by applicable Law, as necessary to comply with COVID-19 Measures (or similar pandemic health requirements) or as set forth on Schedule 5.3, SPAC shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to SPAC and its Subsidiaries and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice. Notwithstanding anything to the contrary in this Section 5.3, nothing in this Agreement shall prohibit or restrict SPAC from extending, in accordance with the SPAC Charter and IPO Prospectus, or by amendment to the SPAC Charter, the deadline by which it must complete its Business Combination (an “Extension”), whether pursuant to exercise of automatic extension rights in accordance with SPAC’s current Organizational Documents or by amendment of SPAC;’s Organizational Documents to extend such deadline, and no consent of any other Party shall be required in connection therewith.
(b) declareWithout limiting the generality of Section 5.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including as contemplated by the Transaction Financing) or as set forth on Schedule 5.3, set asideas required by applicable Law or as necessary to comply with COVID-19 Measures (or similar pandemic health requirements), make during the Interim Period, without the prior written consent of the Company and Pubco (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not, and shall cause its Subsidiaries not to:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third party with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay a or set aside any dividend on, or make any other distribution or payment (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of, any Equity Securities of SPACits shares or other equity interests, or repurchasedirectly or indirectly redeem, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing offer to acquire any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereofits securities;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(eiv) incur, create, assume, refinance, guarantee prepay or otherwise become liable for any Indebtedness (whether directly, contingently, contingently or otherwise) in excess of $250,000 (individually or in the aggregate), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person provided, that this Section 5.3(b)(iv) shall not prevent SPAC from borrowing funds necessary to finance (A) its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Transactions, including any Transaction Financing, up to aggregate additional Indebtedness during the Interim Period of $1,500,000 and (B) the costs and expenses necessary for an Extension (including to fund payments by SPAC to the Trust Account (x) for an automatic extension right in accordance with SPAC’s Organizational Documents or other Liability(y) to incentivize Public Shareholders not to redeem their SPAC Class A Ordinary Shares in an Extension Redemption in connection with an amendment of SPAC’s Organizational Documents to extend its deadline to consummate a Business Combination) (such expenses, “Extension Expenses”);
(fv) make or rescind any loans material election relating to Taxes, settle any material Action relating to Taxes, file any material amended Tax Return or advances toclaim for material refund, or capital contributions tomake any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or guarantees for in compliance with GAAP or IFRS, as applicable;
(vi) amend, waive or otherwise change the benefit of, or Trust Agreement in any investment in, any other Person, other than to, of, or in, manner adverse to SPAC;
(gvii) issue terminate, waive or assign any Equity Securities of material right under any SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPACMaterial Contract;
(hviii) enter intofail to maintain its books, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution accounts and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage records in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except all material respects in the ordinary course of business consistent with past practice;
(ix) establish any Subsidiary or enter into any new line of business;
(x) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, makeoperations and activities in such amount and scope of coverage as are currently in effect;
(xi) revalue any of its material assets or make any change in accounting methods, change principles or revoke practices, except to the extent required to comply with GAAP or IFRS, as applicable, and after consulting SPAC’s outside auditors;
(xii) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC or its Subsidiary) not in excess of $250,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the SPAC Financials;
(xiii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material election concerning Taxes amount of assets outside the ordinary course of business;
(includingxiv) make capital expenditures in excess of $250,000 individually for any project (or set of related projects) or $500,000 in the aggregate (excluding, for the avoidance of doubt, making incurring any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the ClosingExpenses);
(lxv) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, respect to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayedMerger);
(nxvi) enter into voluntarily incur any Contract with any brokerLiability or obligation (whether absolute, finderaccrued, investment banker contingent or other Person under which such Person is otherwise) in excess of $250,000 individually or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals $500,000 in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate aggregate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal incurrence of any such Material Contract Expenses) other than pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be the terms of a SPAC Benefit Plan if Contract in effect existence as of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 5.3 during the Interim Period;
(xvii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xviii) enter into any agreement, understanding or arrangement with respect to the voting of its equity securities;
(xix) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(qxx) enter into any Contract authorize or agree to take, or cause to be taken, do any of the actions set forth foregoing actions.
(c) For the avoidance of doubt, Pubco shall be permitted to issue Pubco Ordinary Shares in this Section 5.10. Notwithstanding anything connection with the Closing in this Section 5.10 or this Agreement to the contrarysatisfaction and payment of Expenses, (i) nothing set forth where such Expenses may be paid other than in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closingcash.
Appears in 2 contracts
Samples: Business Combination Agreement (Two), Business Combination Agreement (Two)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 8.9 of the SPAC Disclosure Schedules Schedule or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayeddelayed by the Company), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC, except as contemplated by the Transaction Proposals;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPACSPAC other than with respect to Public SPAC Warrants;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine combine, reclassify, subdivide or reclassify consolidate any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares its Equity Securities;
(d) incur, create or assume any Indebtedness or guarantee any Liability of its any Person other than in support of the ordinary-course operations of SPAC (which, for the avoidance of doubt, shall include the incurrence, creation or assumption of Indebtedness pursuant to non-interest-bearing working capital stockloans provided by Sponsor to SPAC) or incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Documents, which are not, individually or in the aggregate, material to SPAC;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, capital commitment or capital contributions to, or guarantees for the benefit of, or any investment expenditure in, any other Person, other than to, of, or in, SPAC;
(gf) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of SPAC other than in connection with the foregoing of SPACPIPE Financing;
(hg) enter into, renewamend, modify or revise renew any material Contract with any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(lh) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidation, liquidation or dissolution, restructuringmerge, recapitalizationconsolidate, reorganization restructure, recapitalize or similar transaction involving SPACotherwise reorganize;
(mi) (A) make, change or revoke any material Tax election, (B) amend, modify or otherwise change any filed material Tax Return, (C) adopt, change or request permission of any Tax Authority to change any accounting method for Tax purposes, (D) change SPAC’s methods of any Tax accounting in period, (E) file any material respectTax Return in a manner inconsistent with a previously filed Tax Return of the same type for a prior taxable period (taking into account any amendments), other than changes that are made (iF) fail to pay or remit any material Taxes when due, (G) enter into any closing agreement or similar agreement with any Tax Authority, (H) seek or apply for any Tax ruling, (I) settle, compromise, surrender or otherwise abandon any claim, audit, action, suit, proceeding, examination, investigation or assessment in accordance with PCAOB standards respect of any material Taxes, (J) surrender or allow to expire any right to claim a refund of any material Taxes, or (iiK) as required by consent to or request any Securities Law extension, modification or waiver of any Order, directive, guideline, recommendation, statement statute of limitations in respect of a material amount of Taxes or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation in respect of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Tax attribute;
(nj) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this AgreementTransactions;
(ok) except for entriesother than any Transaction Litigation, modificationswhich is subject to Section 8.2(f), amendmentswaive, waiversrelease, terminations compromise, settle or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive satisfy any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)Proceeding;
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(ql) enter into any Contract agreement to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything 8.9;
(m) voluntarily incur or otherwise become liable to any Liability or obligation (whether absolute, accrued, contingent or otherwise) in this Section 5.10 excess of $250,000 individually or this Agreement to $500,000 in the contraryaggregate (excluding the incurrence of any SPAC Expenses);
(n) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibitincluding securitizations), or otherwise restrict dispose of any material portion of its properties, assets or rights;
(o) enter into any agreement, understanding or arrangement with respect to the ability ofvoting of its equity securities;
(p) engage in any negotiations or discussions, SPAC from using the funds held by SPAC outside the Trust Account whether formal or informal, with respect to pay any SPAC Expenses business combination of any kind or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor description or any debt or equity investment other than as contemplated by this Agreement; or
(q) take any action that would reasonably be expected to significantly delay or impair the obtaining of its Affiliates, any Consents of any Governmental Authority to be obtained in each case, prior to the Closingconnection with this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Arogo Capital Acquisition Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC and Merger Sub shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, Law or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents or Merger Sub’s Governing Documents, as applicable, the Trust Agreement and all other agreements or Contracts to which SPAC or Merger Sub, as applicable, may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules Law or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACSPAC or Merger Sub;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPACSPAC or Merger Sub, or repurchase, redeem (other than in connection with the Offer) or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPACSPAC or Merger Sub;
(c) (i) merge, consolidate, combine or amalgamate SPAC or Merger Sub with any Person (other than the Company) or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other LiabilityLiability other than working capital loans from the Sponsor in an amount not to exceed, in aggregate $2,000,000;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or Merger Sub;
(g) issue any Equity Securities of SPAC or Merger Sub or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPACSPAC or Merger Sub other than working capital warrants pursuant to the Warrant Agreement; provided, that this Section 5.10 shall not be deemed to limit the rights of SPAC under Section 5.13(d);
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s or Merger Sub incorporation or continuing corporate (or similar) existence, as applicable, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPACSPAC not otherwise contemplated by this Agreement), change or otherwise modify any material method of accounting as such relates to Taxes, amend any income or other material Tax Return, surrender any right to claim a material refund of income or other material Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or Merger Sub or any of its their Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPACSPAC or Merger Sub;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with GAAP and PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Governmental Entity;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this AgreementTransactions;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this AgreementAgreement and through the Closing; or
(q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC or Merger Sub and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Omnichannel Acquisition Corp.)
Conduct of Business of SPAC. From (a) Unless the Company and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented Pubco shall otherwise consent in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any during the Interim Period, except as expressly contemplated by this Agreement, as set forth on Schedule 7.3, or as required by applicable Law, SPAC shall, (i) conduct its businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to SPAC and its businesses, assets and employees, and (iii) use commercially reasonable efforts to preserve intact, in all material respects, their respective business organizations, to keep available the following:
(a) adopt any amendmentsservices of its managers, supplementsdirectors, restatements or modifications officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as consistent with past practice. Notwithstanding anything to the Trust Agreementcontrary in this Section 7.3, Warrant nothing in this Agreement shall prohibit or restrict SPAC from (x) extending one or more times, in accordance with SPAC Charter and IPO Prospectus, or by amendment to SPAC Charter, the Governing Documents deadline by which it must complete its initial business combination (each, an “Extension”), or (y) borrowing additional funds from the Sponsor up to $500,000 (individually or in the aggregate) for Expenses (but subject to the provisions of SPAC;Section 7.16), and no consent of any other Party shall be required in connection therewith.
(b) declareWithout limiting the generality of Section 7.3(a) and except as contemplated by the terms of this Agreement (including as contemplated by any PIPE Investment) or any Ancillary Document or as set forth on Schedule 7.3, set asideor as required by applicable Law, make during the Interim Period, without the prior written consent of the Company and Pubco (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay a or set aside any dividend on, or make any other distribution or payment (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of, any Equity Securities of SPACits shares or other equity interests, or repurchasedirectly or indirectly redeem, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing offer to acquire any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereofits securities;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(eiv) incur, create, assume, refinanceprepay, guarantee repay or otherwise become liable for any Indebtedness, Liability (whether directly, contingentlycontingently or otherwise), fees or expenses in excess of $10,000 individually or $100,000 in the aggregate, make a loan or advance to or investment in any third party, or otherwise) guarantee or endorse any Indebtedness Indebtedness, Liability or other Liabilityobligation of any Person;
(fv) make or rescind any loans material election relating to Taxes, settle any material Action relating to Taxes, file any material amended Tax Return or advances toclaim for refund, or capital contributions tomake any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or guarantees for in compliance with GAAP;
(vi) amend, waive or otherwise change the benefit of, or Trust Agreement in any investment in, any other Person, other than to, of, or in, manner adverse to SPAC;
(gvii) issue terminate, waive or assign any Equity Securities of SPAC or grant material right under any additional options, warrants or stock appreciation rights with respect material agreement to Equity Securities of the foregoing of SPACwhich it is a party;
(hviii) enter intofail to maintain its books, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution accounts and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage records in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except all material respects in the ordinary course of business consistent with past practice;
(ix) establish any Subsidiary or enter into any new line of business;
(x) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, makeoperations and activities in such amount and scope of coverage as are currently in effect;
(xi) revalue any of its material assets or make any change in accounting methods, change principles or revoke practices, except to the extent required to comply with GAAP or IFRS, as applicable, and after consulting SPAC’s outside auditors;
(xii) waive, release, assign, settle or compromise any claim or Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in SPAC Financials;
(xiii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material election concerning Taxes amount of assets outside the ordinary course of business;
(including, xiv) make any capital expenditures for any project (or set of related projects) (excluding for the avoidance of doubt, making incurring any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) Expenses in accordance with respect to SPAC), change or otherwise modify any material method the terms of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closingthis Agreement);
(lxv) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, respect to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayedMerger);
(nxvi) enter into voluntarily incur any Contract with Liability or obligation (whether absolute, accrued, contingent or otherwise) (excluding the incurrence of any broker, finder, investment banker Expenses) in excess of $10,000 individually or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals $100,000 in the ordinary course of businessaggregate, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract other than pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be the terms of a SPAC Benefit Plan if Contract in effect existence as of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 7.3 during the Interim Period;
(xvii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xviii) enter into any agreement, understanding or arrangement with respect to the voting of its equity securities;
(xix) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(qxx) enter into any Contract authorize or agree to take, or cause to be taken, do any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closingforegoing actions.
Appears in 1 contract
Samples: Business Combination Agreement (AIB Acquisition Corp)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 8.9 of the SPAC Disclosure Schedules Schedule or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayeddelayed by the Company), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC, except as contemplated by the Transaction Proposals;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPACSPAC other than with respect to SPAC Public Warrants;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine combine, reclassify, subdivide or reclassify consolidate any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares its Equity Securities;
(d) incur, create or assume any Indebtedness or guarantee any Liability of its any Person other than in support of the ordinary-course operations of SPAC (which, for the avoidance of doubt, shall include the incurrence, creation or assumption of Indebtedness pursuant to non-interest-bearing working capital stockloans provided by Sponsor to SPAC) or incident to the consummation of the transactions contemplated by this Agreement or any of the Ancillary Documents, which are not, individually or in the aggregate, material to SPAC;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, capital commitment or capital contributions to, or guarantees for the benefit of, or any investment expenditure in, any other Person, other than to, of, or in, SPAC;
(gf) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of SPAC other than in connection with the foregoing of SPACPIPE Financing;
(hg) enter into, renewamend, modify or revise renew any material Contract with any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(lh) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidation, liquidation or dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(mi) (A) make, change or revoke any material Tax election, (B) amend, modify or otherwise change any filed material Tax Return, (C) adopt, change or request permission of any Tax Authority to change any accounting method for Tax purposes, (D) change SPAC’s methods of any Tax accounting in period, (E) file any material respectTax Return in a manner inconsistent with a previously filed Tax Return of the same type for a prior taxable period (taking into account any amendments), other than changes that are made (iF) fail to pay or remit any material Taxes when due, (G) enter into any closing agreement or similar agreement with any Tax Authority, (H) seek or apply for any Tax ruling, (I) settle, compromise, surrender or otherwise abandon any claim, audit, action, suit, proceeding, examination, investigation or assessment in accordance with PCAOB standards respect of any material Taxes, (J) surrender or allow to expire any right to claim a refund of any material Taxes, or (iiK) as required by consent to or request any Securities Law extension, modification or waiver of any Order, directive, guideline, recommendation, statement statute of limitations in respect of a material amount of Taxes or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation in respect of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Tax attribute;
(nj) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this AgreementTransactions;
(ok) except for entriesother than any Transaction Litigation, modificationswhich is subject to Section 8.2(f), amendmentswaive, waiversrelease, terminations compromise, settle or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive satisfy any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this AgreementProceeding; or
(ql) enter into any Contract agreement to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing8.9.
Appears in 1 contract
Samples: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, Law or as consented in writing by the Company (it being agreed that any request for a such consent shall not to be unreasonably withheld, conditioned, conditioned or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem (other than in connection with the Offer) or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other LiabilityLiability other than working capital or extension loans from the Sponsor in an amount not to exceed $1,500,000;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue issue, grant, sell, deliver or dispose of any Equity Securities of SPAC or grant any additional securities exercisable for or convertible into Equity Securities of SPAC (including options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC);
(h) (i) enter into, renew, modify or revise any SPAC Related Party Transaction Transaction, other than (or A) the entry into any Contract with a SPAC Related Party with respect to the incurrence of Indebtedness permitted by Section 5.9(e) or agreement (B) for the avoidance of doubt, any expiration or automatic extension or renewal of any Contract pursuant to its terms, or (ii) enter into any Contract that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) pay, distribute or advance any assets or property to any of its officers, directors, stockholders or other Affiliates (other than its Subsidiaries) or enter into or amend any agreement with respect to the foregoing, other than regarding (A) payments or distributions relating to obligations in respect of arm’s-length commercial transactions or (B) reimbursement for reasonable expenses incurred in connection with SPAC or its Subsidiaries;
(j) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(jk) except (i) change any material method of Tax accounting, (ii) make (inconsistent with past practice), change or rescind any material election relating to Taxes, (iii) settle or compromise any material Tax audit, assessment, claim or other Proceeding, (iv) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar Tax agreement (which this (iv) does not include any customary commercial agreement entered into in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for business and the avoidance principal purpose of doubt, making any U.S. federal income Tax entity classification election pursuant which does not relate to Treasury Regulations Section 301.7701-3(c) with respect to SPACTaxes), change (v) surrender or otherwise modify any material method of accounting as such relates allow to Taxes, amend any material Tax Return, surrender expire any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim material Taxes or assessment, change its jurisdiction of Tax residence, or (vi) consent to any extension or waiver of the limitation statute of limitations period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlementassessment in respect of material Taxes, conciliation or similar Contract in each case, that would require any payment from the Trust Account or that would impose non-monetary obligations could reasonably be expected to have an adverse and material impact on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing)SPAC;
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Governmental Entity;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.18 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt form any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this AgreementSubsidiary; or
(q) enter into any Contract to take, or cause to be taken, any of the foregoing actions set forth in this Section 5.10clauses (a) through (o) other than the entry into additional Subscription Agreements or PIPE Subscription Agreements pursuant to which SPAC agrees to issue and sell on the Closing Date SPAC Shares as additional PIPE Financing. Notwithstanding anything in this Section 5.10 5.9 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the ClosingSPAC.
Appears in 1 contract
Samples: Business Combination Agreement (Israel Acquisitions Corp)
Conduct of Business of SPAC. From and after During the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its termsInterim Period, SPAC shallshall operate in the ordinary course in all material respects and not, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, to reasonably comply with any applicable Pandemic Measures or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayeddelayed if such matter is in furtherance of the transactions contemplated by this Agreement or any Ancillary Document), do any of the following:
(a) seek an approval from the Pre-Closing SPAC Stockholders, or otherwise adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACany SPAC Party or any of their Subsidiaries;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, as applicable;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(ed) incur, create, assume, refinance, guarantee or otherwise become liable for assume (whether directly, contingently, contingently or otherwise) any Indebtedness, except for Indebtedness or other Liabilityfor borrowed money in an amount not to exceed $1,000,000 in the aggregate;
(fe) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gf) issue any Equity Securities of SPAC or any of its Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing SPAC or any of SPACits Subsidiaries;
(hg) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction), other than the entry into any Contract with a SPAC Related Party with respect to the incurrence of Indebtedness permitted by Section 5.10(d);
(ih) engage in any activities or business, or incur any material Liabilities, other than activities with respect to any activities, business or business Liabilities that are (i) in connection with either otherwise permitted under this Section 5.10 (including, for the avoidance of doubt, any activities, business or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) Liabilities contemplated by, or incident Liabilities incurred in connection with, or related that are otherwise incidental or attendant to, this Agreement, Agreement or any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions transactions contemplated hereby or thereby) or in accordance with or consented to by the Company pursuant to this Section 5.10, (ii) in connection with or incidental or related to its continuing corporate (or similar) existence or it being (or continuing to be) a public company listed on Nasdaq, or (iii) those that which are administrative or ministerialministerial in nature and, in each casethe case of this clause (iii), which are immaterial in naturenot material;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(li) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPACSPAC or its Subsidiaries;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(nj) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ finder’s fee or other commission in connection with the transactions contemplated by this Agreement;
(ok) except for entriesmake, modificationschange or revoke any material Tax election or material Tax accounting method, amendmentsfile any material Tax Return in a manner materially inconsistent with past practice, waiversamend any material Tax Return, terminations enter into any agreement with a Governmental Entity with respect to a material amount of Taxes, settle or non-renewals compromise any claim or assessment by a Governmental Entity in respect of any material amount of Taxes, surrender any right to claim a refund of a material amount of Taxes, consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim or assessment (other than an extension or waiver that arises pursuant to an extension to file a Tax Return obtained in the ordinary course of business), or enter into any Tax sharing or similar agreement (other than any agreement entered into in the ordinary course of business, enter intothe primary purpose of which does not relate to Taxes);
(l) waive, materially modifyrelease, materially amendcompromise, waive settle or satisfy any pending or threatened material right underclaim (which shall include, terminate but not be limited to, any pending or threatened Proceeding);
(excluding m) make any expiration change in any method of financial accounting or financial accounting principles, policies, procedures or practices except changes that are made (i) in accordance with its termsPCAOB standards, or (ii) as required by any Securities Law or fail any Order, directive, guideline, recommendation, statement, comment or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company;
(n) make or permit to renew, be made any Material Contract distribution of amounts held in the type described Trust Account (other than interest income earned on the funds held in Section 4.17(excluding, for the avoidance of doubt, Trust Account as permitted by the Trust Agreement);
(o) create any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)new Subsidiary;
(p) enter into (A) merge, consolidate, combine or adopt amalgamate with any SPAC Benefit Plan Person, or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any benefit Equity Securities in or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as substantial portion of the date of this Agreementassets of, or by any other manner) any corporation, partnership, limited liability company, joint venture, association or other business entity or organization or division thereof; or
(q) enter into any Contract to take, or cause to be taken, or otherwise become obligated to take or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC SPAC, and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or any Liabilities of SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing; provided, that prior to any distribution or payment of any funds to the Sponsor or any of its Affiliates pursuant to the foregoing sentence, SPAC shall cause any Indebtedness of SPAC payable or owing to the Sponsor or any of its Affiliates to be paid in full and discharged with no further Liability or obligation of SPAC.
Appears in 1 contract
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.)
Conduct of Business of SPAC. From (a) Unless the Company and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented Pubco shall otherwise consent in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any during the Interim Period, except as expressly contemplated by this Agreement or as set forth on Schedule 6.3, SPAC shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to SPAC and its Subsidiaries and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the following:
(a) adopt any amendmentsservices of their respective managers, supplementsdirectors, restatements or modifications officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice. Notwithstanding anything to the Trust Agreementcontrary in this Section 6.3, Warrant nothing in this Agreement shall prohibit or restrict SPAC from extending, in accordance with the Governing SPAC Charter and IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), whether pursuant to exercise of automatic extension rights in accordance with SPAC’s current Organizational Documents or by amendment of SPAC;’s Organizational Documents to extend such deadline, and no consent of any other Party shall be required in connection therewith.
(b) declareWithout limiting the generality of Section 6.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including as contemplated by the Transaction Financing) or as set forth on Schedule 6.3, set asideduring the Interim Period, make without the prior written consent of the Company and Pubco (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not, and shall cause its Subsidiaries not to:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay a or set aside any dividend on, or make any other distribution or payment (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of, any Equity Securities of SPACits shares or other equity interests, or repurchasedirectly or indirectly redeem, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing offer to acquire any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereofits securities;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(eiv) incur, create, assume, refinance, guarantee prepay or otherwise become liable for any Indebtedness (whether directly, contingently, contingently or otherwise) in excess of $250,000 (individually or in the aggregate), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person (provided, that this Section 6.3(b)(iv) shall not prevent SPAC from borrowing funds necessary to finance (A) its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Transactions, including any Transaction Financing, up to aggregate additional Indebtedness during the Interim Period of $1,500,000 and (B) the costs and expenses necessary for an Extension (including to fund payments by SPAC to the Trust Account for (x) an automatic extension right in accordance with SPAC’s Organizational Documents or other Liability(y) to incentivize Public Shareholders not to redeem their SPAC Class A Ordinary Shares in an Extension Redemption in connection with an amendment of SPAC’s Organizational Documents to extend its deadline to consummate a Business Combination) (such expenses, “Extension Expenses”);
(fv) make or rescind any loans material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or advances tocontroversy relating to Taxes, file any amended Tax Return or claim for refund, or capital contributions tomake any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or guarantees for in compliance with GAAP or IFRS, as applicable;
(vi) amend, waive or otherwise change the benefit of, or Trust Agreement in any investment in, any other Person, other than to, of, or in, manner adverse to SPAC;
(gvii) issue terminate, waive or assign any Equity Securities of material right under any SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPACMaterial Contract;
(hviii) enter intofail to maintain its books, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution accounts and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage records in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except all material respects in the ordinary course of business consistent with past practice;
(ix) establish any Subsidiary or enter into any new line of business;
(x) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, makeoperations and activities in such amount and scope of coverage as are currently in effect;
(xi) revalue any of its material assets or make any change in accounting methods, change principles or revoke practices, except to the extent required to comply with GAAP or IFRS, as applicable, and after consulting the SPAC’s outside auditors;
(xii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC or its Subsidiary) not in excess of $250,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the SPAC Financials;
(xiii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material election concerning Taxes amount of assets outside the ordinary course of business;
(includingxiv) make capital expenditures in excess of $250,000 individually for any project (or set of related projects) or $500,000 in the aggregate (excluding, for the avoidance of doubt, making incurring any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the ClosingExpenses);
(lxv) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, respect to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayedMerger);
(nxvi) enter into voluntarily incur any Contract with any brokerLiability or obligation (whether absolute, finderaccrued, investment banker contingent or other Person under which such Person is otherwise) in excess of $250,000 individually or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals $500,000 in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate aggregate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal incurrence of any such Material Contract Expenses) other than pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be the terms of a SPAC Benefit Plan if Contract in effect existence as of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 6.3 during the Interim Period;
(xvii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xviii) enter into any agreement, understanding or arrangement with respect to the voting of its equity securities;
(xix) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(qxx) enter into any Contract authorize or agree to take, or cause to be taken, do any of the actions set forth foregoing actions.
(c) For the avoidance of doubt, Pubco shall be permitted to issue Pubco Ordinary Shares in this Section 5.10. Notwithstanding anything connection with the Closing in this Section 5.10 or this Agreement to the contrarysatisfaction and payment of Expenses, (i) nothing set forth where such Expenses may be paid other than in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closingcash.
Appears in 1 contract
Samples: Business Combination Agreement (Capitalworks Emerging Markets Acquisition Corp)
Conduct of Business of SPAC. From and after During the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its termsInterim Period, SPAC shallshall operate in the ordinary course in all material respects and not, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, to reasonably comply with any applicable Pandemic Measures or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayeddelayed if such matter is in furtherance of the transactions contemplated by this Agreement or any Ancillary Document), do any of the following:
(a) seek an approval from the Pre-Closing SPAC Stockholders, or otherwise adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACany SPAC Party or any of their Subsidiaries;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, as applicable;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(ed) incur, create, assume, refinance, guarantee or otherwise become liable for assume (whether directly, contingently, contingently or otherwise) any Indebtedness, except for Indebtedness or other Liabilityfor borrowed money in an amount not to exceed $1,000,000 in the aggregate;
(fe) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gf) issue any Equity Securities of SPAC or any of its Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing SPAC or any of SPACits Subsidiaries;
(hg) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction), other than the entry into any Contract with a SPAC Related Party with respect to the incurrence of Indebtedness permitted by Section 5.10(d);
(ih) engage in any activities or business, or incur any material Liabilities, other than activities with respect to any activities, business or business Liabilities that are (i) in connection with either otherwise permitted under this Section 5.10 (including, for the avoidance of doubt, any activities, business or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) Liabilities contemplated by, or incident Liabilities incurred in connection with, or related that are otherwise incidental or attendant to, this Agreement, Agreement or any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions transactions contemplated hereby or thereby) or in accordance with or consented to by the Company pursuant to this Section 5.10, (ii) in connection with or incidental or related to its continuing corporate (or similar) existence or it being (or continuing to be) a public company listed on Nasdaq, or (iii) those that which are administrative or ministerialministerial in nature and, in each casethe case of this clause (iii), which are immaterial in naturenot material;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(li) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPACSPAC or its Subsidiaries;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(nj) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ finder’s fee or other commission in connection with the transactions contemplated by this Agreement;
(ok) except for entriesmake, modificationschange or revoke any material Tax election or material Tax accounting method, amendmentsfile any material Tax Return in a manner inconsistent with past practice, waiversamend any material Tax Return, terminations enter into any agreement with a Governmental Entity with respect to a material amount of Taxes, settle or non-renewals compromise any claim or assessment by a Governmental Entity in respect of any material amount of Taxes, surrender any right to claim a refund of a material amount of Taxes, consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim or assessment, or enter into any Tax sharing or similar agreement (other than any agreement entered into in the ordinary course of business, enter intothe primary purpose of which does not relate to Taxes);
(l) waive, materially modifyrelease, materially amendcompromise, waive settle or satisfy any pending or threatened material right underclaim (which shall include, terminate but not be limited to, any pending or threatened Proceeding);
(excluding m) make any expiration change in any method of financial accounting or financial accounting principles, policies, procedures or practices except changes that are made (i) in accordance with its termsPCAOB standards, or (ii) as required by any Securities Law or fail any Order, directive, guideline, recommendation, statement, comment or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company;
(n) make or permit to renew, be made any Material Contract distribution of amounts held in the type described Trust Account (other than interest income earned on the funds held in Section 4.17(excluding, for the avoidance of doubt, Trust Account as permitted by the Trust Agreement);
(o) create any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)new Subsidiary;
(p) enter into (A) merge, consolidate, combine or adopt amalgamate with any SPAC Benefit Plan Person, or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any benefit Equity Securities in or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as substantial portion of the date of this Agreementassets of, or by any other manner) any corporation, partnership, limited liability company, joint venture, association or other business entity or organization or division thereof; or
(q) enter into any Contract to take, or cause to be taken, or otherwise become obligated to take or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC SPAC, and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or any Liabilities of SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing; provided, that prior to any distribution or payment of any funds to the Sponsor or any of its Affiliates pursuant to the foregoing sentence, SPAC shall cause any Indebtedness of SPAC payable or owing to the Sponsor or any of its Affiliates to be paid in full and discharged with no further Liability or obligation of SPAC.
Appears in 1 contract
Samples: Business Combination Agreement (Atlantic Coastal Acquisition Corp. II)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except Except as expressly contemplated by this Agreement (including the Reorganization and any PIPE Financing), the Organizational Documents of SPAC or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsCovenant End Date, SPAC shall notshall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed), (a) conduct its business in all material respects in the ordinary course of business, consistent with past practice and (b) use commercially reasonable efforts to preserve substantially intact its business organization and to preserve in all material respects the present commercial relationships with key Persons with whom it does business. Without limiting the generality of this Section 6.2, except as contemplated by this Agreement (including the Reorganization and any PIPE Financing) or as required by applicable Law, from and after the date hereof until the Covenant End Date, SPAC shall not, directly or indirectly, do any of the following:following except as consented to in writing by the Company (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(eb) incurauthorize for issuance, create, assume, refinance, guarantee issue or otherwise become liable for sell (whether directlythrough the issuance or granting of options, contingentlywarrants, commitments, subscriptions, rights to purchase or otherwise) any Indebtedness stock of any class or any other Liabilitysecurities or equity equivalents;
(fc) make merge or consolidate with any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(gd) issue acquire any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, material assets other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business;
(e) make any change to its Organizational Documents;
(f) sell, lease, license, pledge, abandon or otherwise dispose of, any material properties or material assets, other than in the ordinary course of business;
(g) materially change accounting policies or procedures, except as required by applicable Law or by GAAP;
(h) make, rescind or change or revoke any material Tax election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessmentassessment or change its residence for any Tax purpose, in each case except as required by applicable Law;
(i) take any action that would reasonably be expected to (i) prevent the Reorganization and the Merger, taken together, from qualifying as an exchange governed by Section 351 of the Code and the Treasury Regulations thereunder and (ii) prevent the Merger from qualifying as a reorganization pursuant to Section 368(a) of the Code and the Treasury Regulations thereunder;
(j) incur or assume any Indebtedness or issue or sell any debt securities or warrants or other rights to acquire any debt securities, other than (i) incurring indebtedness for borrowed money in an aggregate amount not to exceed $50,000 and (ii) Working Capital Loans in an aggregate amount not to exceed $1,500,000;
(k) enter into take any settlementaction or omit to take any action for the purpose of preventing, conciliation delaying or similar Contract that would require any payment from impeding the Trust Account or that would impose non-monetary obligations on SPAC or any consummation of its Affiliates (the Merger or the Company or any of its Subsidiaries after the Closing);other Transactions; or
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled binding agreement committing it to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) enter into any Contract to take, or cause to be taken, take any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closingforegoing actions.
Appears in 1 contract
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing or the transactions contemplated by the Sponsor Support Agreement), as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, the SPAC Warrant Agreement or the Governing Documents of SPACSPAC or seek any approval from the Pre-Closing SPAC Stockholders to take any such action, except as contemplated by the Transaction Proposals;
(b) create or form any Subsidiary;
(c) (i) merge, consolidate or combine the SPAC with any Person, or (ii) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or enter into any strategic joint ventures, partnerships or alliances with any other Person;
(d) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any its Equity Securities of SPACSecurities, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any of its outstanding Equity Securities Securities, other than a redemption of SPACSPAC Class A Shares (prior to the SPAC Merger Effective Time) made as part of the SPAC Stockholder Redemption;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(de) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(ef) (i) incur, create, assume, refinance, create or assume any indebtedness for borrowed money or (ii) guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other LiabilityLiability of any Person;
(fg) (i) sell, assign, abandon, lease, exclusively license or otherwise dispose of any assets or properties of the SPAC or (ii) create, subject or incur any Lien (other than any Permitted Liens) on any assets or properties of the SPAC;
(h) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gi) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to its Equity Securities of the foregoing of SPACSecurities;
(hj) enter intosubject to Section 5.2(e), renewwaive, release, compromise, settle or agree to waive, release, compromise, or settle any Proceeding except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $100,000 in the aggregate;
(k) (i) amend, modify or revise renew any SPAC Related Party Transaction Transaction, other than, (for the avoidance of doubt, any expiration or automatic extension or renewal of any Contract or agreement pursuant to its terms), (ii) enter into any Contract that if entered into prior to the execution and delivery of this Agreement would be constitute a SPAC Related Party Transaction)Transaction or (iii) make any material payment to any SPAC Related Party;
(il) engage in any activities or business, or incur any Liabilities, other than activities any activities, businesses or business (i) Liabilities that are contemplated by, incurred in connection with or incident that are otherwise incidental or related attendant to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, this Agreement or incident or related to, this Agreement, any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in natureTransactions;
(jm) except for entries, modifications, amendments, waivers or terminations in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under or terminate any Contract of a type required to be listed on Section 4.10(a) of the SPAC Disclosure Schedules(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such material contract pursuant to its terms);
(n) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(i) except in the ordinary course of businessbusiness consistent with past practice, (A) make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), (B) change or otherwise modify any material method of accounting as such relates to Taxesfor Tax purposes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, or (ii) enter into any Tax closing agreement, agreement or settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessmentassessment for an amount materially in excess of the amounts accrued or reserved with respect thereto;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(mp) change SPAC’s any methods of financial accounting in any material respect, other than changes required by a change in GAAP or Law or that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)standards;
(nq) enter into or amend any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this AgreementTransactions;
(or) except for entries(i) establish, modificationsadopt, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amendamend or terminate any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, waive whether or not subject to ERISA), equity or equity-based, deferred compensation, severance, retention, bonus, incentive, retirement, retiree or post-employment welfare, vacation, and other benefit or compensatory plan, program, policy, arrangement or Contract, (ii) grant or increase (or accelerate the timing of payment or funding of) any material right undercompensation or benefits (including, terminate (excluding any expiration in accordance with its terms) or fail to renewwithout limitation, any Material Contract of the type described severance or change in Section 4.17(excluding, control or retention payments) to any employee or independent contractor or (iii) (A) hire any employee or (B) engage any individual independent contractor or consultant for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)fees;
(ps) enter into incur or adopt any approve SPAC Benefit Plan Expenses in excess of $12.050 million in the aggregate;
(t) distribute or transfer funds or any benefit other assets held or compensation plan, policy, program controlled by SPAC outside the Trust Account to the SPAC Sponsor or arrangement that would be a SPAC Benefit Plan if in effect as any of the date of this Agreementits Affiliates; or
(qu) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.105.9. Notwithstanding anything in this Section 5.10 5.9 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC SPAC. From and (ii) nothing set forth in after the date of this Agreement shall prohibit, until the earlier of the Closing or otherwise restrict the ability oftermination of this Agreement in accordance with its terms, SPAC from using the funds held by SPAC outside shall comply in all material respects with, and continue performing under, as applicable, its Governing Documents, the Trust Account Agreement and all other material Contracts to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closingwhich it may be a party.
Appears in 1 contract
Samples: Transaction Agreement (Riverview Acquisition Corp.)
Conduct of Business of SPAC. From Except (a) as contemplated or permitted by the Transaction Documents, (b) as required by applicable Law (including for this purpose any COVID-19 Measures), or (c) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), during the Interim Period, SPAC (i) shall operate its business in the Ordinary Course and after (ii) shall not:
(a) except in connection with the date Subscription Agreements, authorize for issuance, issue, grant, sell, pledge, dispose of this or propose to issue, grant, sell, pledge or dispose of any of its Equity Securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its Equity Securities, or other securities, including any securities convertible into or exchangeable for any of its Equity Securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third party with respect to such securities;
(b) (i) seek any approval from SPAC Shareholders to change, modify or amend the Trust Agreement until the earlier of the Closing or the termination of this SPAC Charter, or (ii) change, modify or amend the Trust Agreement or their respective Organizational Documents, in accordance with its terms, SPAC shall, each case except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACShareholder Approval Matters;
(bi) declare, set aside, establish a record date for, make or pay a any dividend onor other distribution, or make any other distribution or payment (whether payable in cash, stock shares, property or propertyotherwise, with respect to any of its share capital, (ii) in respect ofsplit, combine, subdivide, reclassify or amend any terms of its Equity Securities of SPACor (iii) redeem, or repurchase, redeem cancel or otherwise acquire, acquire or offer to redeem, repurchase, redeem or otherwise acquireacquire any of its Equity Securities, other than a redemption of SPAC Ordinary Shares in connection with the exercise of any outstanding Equity Securities of SPACSPAC Shareholder Redemption Right by any SPAC Shareholder;
(cd) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (iincluding securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(e) merge, consolidate, combine consolidate or amalgamate SPAC with any Person or (ii) purchase into, or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets ofof or any equity in, or by any other manner) or make any corporation, partnership, association advance or other business entity loan to or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue investment in any other security in respect of, in lieu of Person or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) be acquired by any Indebtedness or other LiabilityPerson;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes in respect of Taxes, (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(cii) with respect to SPAC), adopt or change or otherwise modify any material Tax accounting method of accounting as such relates or period, (iii) file any material amended Tax Return, (iv) enter into any Tax closing agreement with any Governmental Authority, (v) settle any material claim or Action relating to Taxes, amend any material Tax Return, (vi) knowingly surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or (vii) consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, or (viii) fail to pay any material Tax that becomes due and payable (including estimated Tax payments) (other than Taxes being contested in good faith and for which adequate reserves have been established in the SPAC Financial Statements in accordance with GAAP);
(g) take any action that could reasonably be expected prevent, impair or impede the Intended Tax Treatment;
(h) incur, assume, guarantee or repurchase or otherwise become liable for any Indebtedness, or issue or sell any debt securities or options, warrants, rights or conversion or other rights to acquire debt securities, or other material Liability, in any case in a principal amount or amount, as applicable, exceeding $1,000,000 in the aggregate, other than Liabilities that qualify as SPAC Transaction Expenses; provided that this Section 6.3(h) shall not prevent SPAC from borrowing funds necessary to finance its ordinary course administrative costs and expenses and SPAC Transaction Expenses incurred in connection with the consummation of the Transaction;
(i) make any change in its accounting principles or methods unless required by GAAP or applicable Laws;
(j) settle or agree to settle any Action before any Governmental Authority or any other third party or that imposes injunctive or other non-monetary relief on SPAC;
(k) enter into any settlementliquidate, conciliation dissolve, reorganize or similar Contract that would require any payment from otherwise wind-up the Trust Account or that would impose non-monetary obligations on business and operations of SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, adopt a plan of complete or partial liquidationliquidation or dissolution, dissolutionconsolidation, restructuring, recapitalization, reorganization reclassification or similar transaction involving change in capitalization or other reorganization of SPAC;
(ml) change SPAC’s methods of accounting in terminate, waive or assign any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in right under any material Liability, subject Contract to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);which it is a party; or
(nm) enter into any Contract with agreement or otherwise make any broker, finder, investment banker or other Person commitment to do any action prohibited under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing6.3.
Appears in 1 contract
Samples: Business Combination Agreement (Gesher I Acquisition Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.09 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or material Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.09 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) Xxxxx, waive, authorize any or adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, authorize, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock stock, property, any combination thereof or propertyotherwise) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC (other than pursuant to the Governing Documents of SPAC);
(c) transfer, issue, sell, pledge, grant or otherwise directly or indirectly dispose of, or subject to a Lien (other than Permitted Liens) (A) any Equity Securities of SPAC or (B) any options, restricted stock, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating SPAC to issue, deliver or sell any Equity Securities of SPAC;
(cd) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire or agree to purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any business, any corporation, partnership, association or other business entity or organization or division thereof, or any material assets in excess of consideration of $100,000 in the aggregate;
(de) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(ef) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or Indebtedness, other Liabilitythan the Sponsor Loans;
(fg) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(gh) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(hi) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(ij) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(jk) except in the ordinary course of businessbusiness or as required by applicable Law, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC)SPAC not otherwise contemplated by this Agreement) in a manner inconsistent with past practices, change or otherwise modify any material method of accounting as such relates to Taxes, amend any income or other material Tax Return, knowingly surrender any right to claim a material refund of income or other material Taxes, enter into any Tax closing agreement, settle any material Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(kl) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(lm) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(mn) change SPAC’s methods methods, principles or practices of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)GAAP;
(no) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(op) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course Ordinary Course of businessBusiness, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract material contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract material contract pursuant to its terms);
(pq) enter into into, establish or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(qr) enter into any Contract to take, or cause to be taken, any accrue SPAC Expenses which are not otherwise set forth on Section 4.09(b) of the actions set forth SPAC Disclosure Schedules in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations excess of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.$50,000; or
Appears in 1 contract
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.11 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent Consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.11 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent Consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem (other than in connection with the SPAC Stockholder Redemption) or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person (other than Merger Sub) or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability, other than working capital loans from the Sponsor in an amount not to exceed, in aggregate $2,000,000;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue issue, transfer, grant, sell, deliver or authorize dispose of any Equity Securities of SPAC or grant any additional securities exercisable for or convertible into Equity Securities of SPAC (including options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPACother equity-based awards);
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC)Taxes, change or otherwise modify any material method of accounting as such relates to Taxes, amend any income or other material Tax Return, surrender any right to claim a material refund of income or other material Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent Consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) (i) commence any Proceeding that is material to the SPAC or its assets or properties or (ii) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)standards;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) seek any approval from the SPAC Stockholders except as contemplated by the Transaction Proposals;
(r) form any Subsidiary;
(s) sell, assign, transfer, convey, lease, license, abandon, dedicate to the public or otherwise dispose of any material tangible assets or properties of SPAC;
(t) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.105.11. Notwithstanding anything in this Section 5.10 5.11 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability, except for the Unpaid SPAC Expenses;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction), other than with respect to Unpaid SPAC Expenses;
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPACSPAC not contemplated by this Agreement), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, in each case, if such action would reasonably be expected to materially increase the present or future Tax liability of SPAC or any of the Group Companies;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose any material non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)standards;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Collective Growth Corp)
Conduct of Business of SPAC. From and after During the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its termsInterim Period, SPAC shallshall operate in the ordinary course in all material respects and not, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, to reasonably comply with any applicable Pandemic Measures or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayeddelayed if such matter is in furtherance of the transactions contemplated by this Agreement or any Ancillary Document), do any of the following:
(a) seek an approval from the Pre-Closing SPAC Stockholders, or otherwise adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACany SPAC Party or any of their Subsidiaries;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any issued and outstanding Equity Securities of SPACSPAC or any of its Subsidiaries, as applicable;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(ed) incur, create, assume, refinance, guarantee or otherwise become liable for assume (whether directly, contingently, contingently or otherwise) any Indebtedness, except for Indebtedness or other Liabilityfor borrowed money in an amount not to exceed $1,000,000 in the aggregate;
(fe) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gf) issue any Equity Securities of SPAC or any of its Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing SPAC or any of SPACits Subsidiaries;
(hg) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction), other than the entry into any Contract with a SPAC Related Party with respect to the incurrence of Indebtedness permitted by Section 5.10(d);
(ih) engage in any activities or business, or incur any material Liabilities, other than activities with respect to any activities, business or business Liabilities that are (i) in connection with either otherwise permitted under this Section 5.10 (including, for the avoidance of doubt, any activities, business or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) Liabilities contemplated by, or incident Liabilities incurred in connection with, or related that are otherwise incidental or attendant to, this Agreement, Agreement or any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions transactions contemplated hereby or thereby) or in accordance with or consented to by the Company pursuant to this Section 5.10, (ii) in connection with or incidental or related to its continuing corporate (or similar) existence or it being (or continuing to be) a public company listed on Nasdaq, or (iii) those that which are administrative or ministerialministerial in nature and, in each casethe case of this clause (iii), which are immaterial in naturenot material;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(li) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPACSPAC or its Subsidiaries;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(nj) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ finder’s fee or other commission in connection with the transactions contemplated by this Agreement;
(ok) except for entriesmake, modificationschange or revoke any material Tax election or material Tax accounting method, amendmentsfile any material Tax Return in a manner inconsistent with past practice, waiversamend any material Tax Return, terminations enter into any agreement with a Governmental Entity with respect to a material amount of Taxes, settle or non-renewals compromise any claim or assessment by a Governmental Entity in respect of any material amount of Taxes, surrender any right to claim a refund of a material amount of Taxes, consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim or assessment, or enter into any Tax sharing or similar agreement (other than any agreement entered into in the ordinary course of business, enter intothe primary purpose of which does not relate to Taxes);
(l) waive, materially modifyrelease, materially amendcompromise, waive settle or satisfy any pending or threatened material right underclaim (which shall include, terminate but not be limited to, any pending or threatened Proceeding);
(excluding m) make any expiration change in any method of financial accounting or financial accounting principles, policies, procedures or practices except changes that are made (i) in accordance with its termsPCAOB standards, or (ii) as required by any Securities Law or fail any Order, directive, guideline, recommendation, statement, comment or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company;
(n) make or permit to renew, be made any Material Contract distribution of amounts held in the type described Trust Account (other than interest income earned on the funds held in Section 4.17(excluding, for the avoidance of doubt, Trust Account as permitted by the Trust Agreement);
(o) create any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)new Subsidiary;
(p) enter into (A) merge, consolidate, combine or adopt amalgamate with any SPAC Benefit Plan Person, or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any benefit Equity Securities in or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as substantial portion of the date of this Agreementassets of, or by any other manner) any corporation, partnership, limited liability company, joint venture, association or other business entity or organization or division thereof; or
(q) enter into any Contract to take, or cause to be taken, or otherwise become obligated to take or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC SPAC, and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or any Liabilities of SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing; provided, that prior to any distribution or payment of any funds to the Sponsor or any of its Affiliates pursuant to the foregoing sentence, SPAC shall cause any Indebtedness of SPAC payable or owing to the Sponsor or any of its Affiliates to be paid in full and discharged with no further Liability or obligation of SPAC.
Appears in 1 contract
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPACSPAC not otherwise contemplated by this Agreement), change or otherwise modify any material method of accounting as such relates to Taxes, amend any income or other material Tax Return, surrender any right to claim a material refund of income or other material Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)standards;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Software Acquisition Group Inc. II)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 7.9 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent (other than with respect to Section 7.9(f)) not to be unreasonably withheld, conditioned or delayeddelayed by the Company), do any of the following:
(a) other than the Warrant Agreement Amendment, adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPACany SPAC Party or any of its Subsidiaries;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPACSPAC or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPACSPAC or any of its Subsidiaries;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine combine, reclassify, subdivide or reclassify consolidate any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares its Equity Securities;
(d) other than non-interest bearing working capital loans provided by Sponsor to SPAC, incur, create or assume any Indebtedness or guarantee any Liability of its capital stockany Person (other than any SPAC Party);
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gf) other than the Additional PIPE Financing, issue any Equity Securities of SPAC SPAC, NewCo or any of their respective Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing SPAC, NewCo or any of SPACtheir respective Subsidiaries;
(g) enter into, amend, modify or renew any Contract with any SPAC Related Party;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, or incur any material SPAC Liabilities, other than activities any activities, businesses or business SPAC Liabilities that are either permitted under this Section 7.9 (i) including, for the avoidance of doubt, any activities, businesses or SPAC Liabilities contemplated by, incurred in connection with or incident that are otherwise incidental or related attendant to SPAC’s incorporation this Agreement or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions Transactions) or in accordance with this Section 7.9;
(iiii) those that are administrative authorize, recommend, propose or ministerial, in each case, which are immaterial in natureannounce an intention to adopt a plan of complete or partial liquidation or dissolution;
(j) except in the ordinary course of business, (i) make, change or revoke any material election concerning Taxes or amend any Tax Returns, (includingii) enter into any material Tax closing agreement, for (iii) settle, compromise or agree to the avoidance entry of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) judgment with respect to SPAC), change or otherwise modify any material method of accounting as such relates Proceeding related to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, (iv) enter into any Tax closing sharing, Tax allocation or Tax indemnification agreement, settle (v) make a request for a Tax ruling to any Tax claim or assessment, change its jurisdiction of Tax residenceGovernmental Entity, or (vi) consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim claim, assessment or assessmentreassessment, other than any such extension or waiver that is obtained in the ordinary course of business;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this AgreementTransactions;
(ol) except for entriesother than any Transaction Litigation, modificationswhich is subject to Section 7.2(d), amendmentscommence, waiversrelease, terminations assign, compromise, settle or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive agree to settle any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms)Proceeding;
(pm) enter into or adopt any SPAC Benefit Plan except as required by GAAP (or any benefit interpretation thereof) or compensation planapplicable Law, policymake any change in accounting methods, program principles or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreementpractices; or
(qn) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.107.9. Notwithstanding anything in this Section 5.10 7.9 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, Party prior to the Closing.
Appears in 1 contract
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary DocumentDocument (including in connection with the Extension, the Extension or the SPAC Warrant Amendment), as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed)Company, do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, SPAC Warrant Agreement Agreements or the SPAC Governing Documents Document or any of SPACits Subsidiaries;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPACSPAC or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPACSPAC or any of its Subsidiaries;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine combine, reclassify, subdivide or reclassify consolidate any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares its Equity Securities;
(d) incur, create or assume any Indebtedness or guarantee any Liability of its capital stockany other Person, other than the Extension Amount or otherwise as related to the Extensions;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPACSPAC or any of its Subsidiaries;
(gf) issue any Equity Securities of SPAC or any of its Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing SPAC or any of SPACits Subsidiaries;
(hg) enter into, renew(i) amend, modify or revise renew any SPAC Related Party Transaction Transaction, other than (or A) the entry into any Contract with a SPAC Related Party with respect to the incurrence of Indebtedness permitted by Section 5.10(d) or agreement (b) for the avoidance of doubt, any expiration or automatic extension or renewal of any Contract pursuant to its terms, or (ii) enter into any Contract that if entered into prior to the execution and delivery of this Agreement would be constitute a SPAC Related Party Transaction);
(ih) engage in any activities or business, or incur any material SPAC Liabilities, other than activities any activities, businesses or business SPAC Liabilities that are either permitted under this Section 5.10 (i) including, for the avoidance of doubt, any activities, businesses or SPAC Liabilities contemplated by, incurred in connection with or incident that are otherwise incidental or related attendant to SPAC’s incorporation this Agreement or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the Transactions transactions contemplated hereby or thereby) or in accordance with this Section 5.10;
(iiii) those that are administrative authorize, recommend, propose or ministerial, in each case, which are immaterial in natureannounce an intention to adopt a plan of complete or partial liquidation or dissolution;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any material Tax closing agreement, settle any Tax material claim or assessment, change its jurisdiction of Tax residence, or consent Consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, other than any such extension or waiver that is obtained in the ordinary course of business, or fail to pay any material Taxes when due;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(ql) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Genesis Growth Tech Acquisition Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documentsthe SPAC Memorandum and Articles of Association, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents SPAC Memorandum and Articles of SPACAssociation;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, shares, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, company, partnership, association or other business entity or organization or division thereof;
(d) subdivide, split, consolidate, combine or reclassify any of its shares, capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares or shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability, except for SPAC Working Capital Loans equal to $500,000 in the aggregate;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of SPAC, other than upon a conversion of SPAC Class B Shares into SPAC Class A Shares in accordance with the foregoing SPAC Memorandum and Articles of SPACAssociation;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction), except for SPAC Working Capital Loans equal to $500,000 in the aggregate (on substantially the same terms as SPAC Working Capital Loans existing on the date hereof, but without any right or conversion);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change TABLE OF CONTENTS its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, by the SEC, in each case following reasonable prior consultation with the Company and, to the extent such change would (x) adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, (y) delay the consummation of the transactions contemplated by the Agreement or (z) result in any material Liability, subject to the Company’s prior written consent (solely in the case of clause (y), not to be unreasonably withheld, conditioned or delayed);
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement;
(q) hire, engage, terminate (without cause), furlough, or temporarily lay off any employees;
(r) incur any Lien on or transfer (other than pursuant to non-exclusive licenses), let lapse, abandon, sell, assign, exclusively license, or dispose of any material Intellectual Property Rights or Technology owned by or licensed to SPAC (in each case, other than in the ordinary course of business);
(s) engage in any material new line of business; or
(qt) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. 5.9; Notwithstanding anything in this Section 5.10 5.9 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from and after the date of the SPAC Shareholders Meeting, from using the funds held by SPAC outside the Trust Account in order to pay SPAC Expenses and repay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its AffiliatesWorking Capital Loans, in each case, prior to the Closing.
Appears in 1 contract
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules, Law or as consented in writing by the Company (it being agreed that any request for a such consent shall not to be unreasonably withheld, conditioned, conditioned or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documents, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable LawLaw (including COVID-19 Measures), as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents of SPAC;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem (other than in connection with the Offer) or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person (other than Merger Sub) or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other LiabilityLiability other than working capital loans from the Sponsor Group in an amount not to exceed $1,000,000;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue issue, grant, sell, deliver or dispose of any Equity Securities of SPAC or grant any additional securities exercisable for or convertible into Equity Securities of SPAC (including options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC);
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change make or revoke rescind any material election concerning relating to Taxes (includingsettle any claim, for the avoidance of doubtaction, making any U.S. federal income Tax entity classification election pursuant suit, litigation, Proceeding, arbitration, investigation, audit or controversy relating to Treasury Regulations Section 301.7701-3(c) with respect to SPAC)material Taxes, change or otherwise modify file any material method of accounting as such relates to Taxesamended Tax Return or surrender any claim for material refund, amend or make any material change in its accounting or Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim policies or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessmentprocedures;
(k) (i) commence any Proceeding that is material to the SPAC or its assets or properties or (ii) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose material non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed)Governmental Entity;
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding4.17 (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement;
(q) seek any approval from the SPAC Stockholders except as contemplated by the Transaction Proposals;
(r) form any Subsidiary;
(s) sell, assign, transfer, convey, lease, license, abandon, dedicate to the public or otherwise dispose of any material tangible assets or properties of SPAC; or
(qt) enter into any Contract to take, or cause to be taken, any of the foregoing actions set forth in this Section 5.10clauses (a) through (s). Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor Group or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Mount Rainier Acquisition Corp.)
Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules, or as consented in writing by the Company (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned, or delayed), use its commercially reasonable efforts to comply with and continue performing under SPAC’s Governing Documentsthe SPAC Memorandum and Articles of Association, the Trust Agreement and all other agreements or Contracts to which SPAC may be a party. Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.10 5.9 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement, Warrant Agreement or the Governing Documents SPAC Memorandum and Articles of SPACAssociation;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment (whether in cash, shares, stock or property) in respect of, any Equity Securities of SPAC, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of SPAC;
(c) (i) merge, consolidate, combine or amalgamate SPAC with any Person or (ii) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, company, partnership, association or other business entity or organization or division thereof;
(d) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(e) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently, or otherwise) any Indebtedness or other Liability;
(f) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investment in, any other Person, other than to, of, or in, SPAC;
(g) issue any Equity Securities of SPAC or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SPAC;
(h) enter into, renew, modify or revise any SPAC Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SPAC Related Party Transaction);
(i) engage in any activities or business, other than activities or business (i) in connection with or incident or related to SPAC’s incorporation or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;
(j) except in the ordinary course of business, make, change or revoke any material election concerning Taxes (including, for the avoidance of doubt, making any U.S. federal income Tax entity classification election pursuant to Treasury Regulations Section 301.7701-3(c) with respect to SPAC), change or otherwise modify any material method of accounting as such relates to Taxes, amend any material Tax Return, surrender any right to claim a material refund of Taxes, enter into any Tax closing agreement, settle any Tax claim or assessment, change its jurisdiction of Tax residence, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment;
(k) enter into any settlement, conciliation or similar Contract that would require any payment from the Trust Account or that would impose non-monetary obligations on SPAC or any of its Affiliates (or the Company or any of its Subsidiaries after the Closing);
(l) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving SPAC;
(m) change SPAC’s methods of accounting in any material respect, other than changes that are made (i) in accordance with PCAOB standards or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company and, to the extent such change would adversely affect SPAC’s ability to consummate the transactions contemplated by the Agreement, delay the consummation of the transactions contemplated by the Agreement or result in any material Liability, subject to the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(n) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement;
(o) except for entries, modifications, amendments, waivers, terminations or non-renewals in the ordinary course of business, enter into, materially modify, materially amend, waive any material right under, terminate (excluding any expiration in accordance with its terms) or fail to renew, any Material Contract of the type described in Section 4.17(excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms);
(p) enter into or adopt any SPAC Benefit Plan or any benefit or compensation plan, policy, program or arrangement that would be a SPAC Benefit Plan if in effect as of the date of this Agreement; or
(q) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10. Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SPAC from using the funds held by SPAC outside the Trust Account to pay any SPAC Expenses or SPAC Liabilities or from otherwise distributing or paying over any funds held by SPAC outside the Trust Account to Sponsor or any of its Affiliates, in each case, prior to the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Endurance Acquisition Corp.)
