Conduct of Business of the Buyer. Except as contemplated by this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth in Section 7.2 of the Buyer Disclosure Letter, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, without the prior written consent of the Seller (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt of the Buyer’s written request for such response and, if the Seller does not timely respond in writing, such consent shall be deemed withheld), the Buyer shall not, and shall cause its Subsidiaries not to, undertake any of the following actions: (a) amend or otherwise change (whether by merger or otherwise) the certificate of incorporation or bylaws or any similar governing instruments of the Buyer that would prevent, materially delay or materially impair the transactions contemplated by this Agreement; (b) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (y) dividends and distributions paid or payable by a Subsidiary of the Buyer to another Subsidiary of the Buyer or to the Buyer); (c) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for any of the foregoing; (d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer in the ordinary course); (e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares; (f) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution of the Buyer; or (g) agree to take any of the foregoing actions.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Sonoco Products Co), Equity Purchase Agreement (Sonoco Products Co)
Conduct of Business of the Buyer. Except The Buyer agrees that:
(a) between the date of this Agreement and the Closing Date, except as contemplated by otherwise expressly provided in this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth provided in Section 7.2 6.2(a) of the Buyer Disclosure Letter, during required by applicable Law or otherwise agreed to in writing by the period Company (which agrees to respond promptly to any request for such agreement and not to unreasonably withhold or condition such agreement), the Buyer shall, and shall cause each of its Subsidiaries to (i) conduct its business in the ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it; provided, that no breach of this Section 6.2(a) shall result from any actions taken on behalf of the Buyer or its Subsidiaries by DCM under the Management Agreement, other than any such actions taken at the direction of the Board of Directors of the Buyer or the Special Committee; and
(b) between the date of this Agreement to and the earlier Closing Date, except as otherwise expressly provided in this Agreement, provided in Section 6.2(b) of the Closing Date and Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the termination Company. The Buyer agrees that between the date of this Agreement and the Closing Date, except as otherwise expressly provided in accordance with Article 10this Agreement, without the prior written consent provided in Section 6.2 of the Seller Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the Company or the Sellers’ Representative (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt each of the Buyer’s written which agrees to respond promptly to any request for such response and, if the Seller does agreement and not timely respond in writing, to unreasonably withhold or condition such consent shall be deemed withheldagreement), the Buyer shall not, and shall cause its Subsidiaries not toto (provided, undertake that no breach of this Section 6.2 shall result from any of the following actions:
(a) amend or otherwise change (whether by merger or otherwise) the certificate of incorporation or bylaws or any similar governing instruments actions taken on behalf of the Buyer that would preventor its Subsidiaries by DCM under the Management Agreement, materially delay other than any such actions taken at the direction of the Board of Directors of the Buyer or materially impair the transactions contemplated by this AgreementSpecial Committee):
(i) amend its Charter, By-laws or comparable organizational instruments;
(bii) declareissue, set asidedeliver, make sell, grant or authorize any Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries, or any class of securities convertible into exchangeable or exercisable for, or rights, warrants or options to acquire, Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries or repurchase, redeem or otherwise acquire Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries;
(iii) effect any recapitalization, reclassification, split or combination in the capitalization of the Buyer or any of its Subsidiaries;
(iv) make, declare or pay any dividend dividends or other distribution, payable make any distribution or payment (whether in cash, stock or property or any combination thereof) with respect to any shares of its capital stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (yA) dividends and or distributions paid or payable made by a wholly-owned Subsidiary of the Buyer to another Subsidiary of the Buyer or any of its Subsidiaries, (B) as necessary to maintain the Buyer)’s REIT qualification and as necessary for the Buyer to avoid being subject to Tax under Sections 857, 860 and 4981 of the Code, or (C) other ordinary cash dividends made in the ordinary course consistent with past practice;
(c) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for any of the foregoing;
(d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer in the ordinary course);
(e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares;
(fv) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution dissolution;
(vi) facilitate or approve any transaction in which all of the Buyerholders of the outstanding shares of Buyer Common Stock are afforded the opportunity to sell or otherwise dispose of any or all of such shares held by them unless the Buyer shall have used its commercially reasonable efforts to have provision made for the Persons who are to receive the Aggregate Share Consideration to be afforded the opportunity to include the Aggregate Share Consideration, or the pro rata portion thereof, in such transaction on the same terms and conditions; or
(gvii) agree to or make any commitment to take any actions prohibited by this Section 6.2. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit the Buyer from taking any action at any time or from time to time that in the reasonable judgment of the foregoing actionsBoard of Directors of the Buyer, upon advice of counsel, is reasonably necessary for the Buyer to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time, including making dividend or distribution payments to stockholders of the Buyer in accordance with this Agreement or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Deerfield Triarc Capital Corp)
Conduct of Business of the Buyer. Except The Buyer agrees that:
(a) between the date of this Agreement and the Closing Date, except as contemplated by otherwise expressly provided in this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth provided in Section 7.2 6.2(a) of the Buyer Disclosure Letter, during required by applicable Law or otherwise agreed to in writing by the period Company (which agrees to respond promptly to any request for such agreement and not to unreasonably withhold or condition such agreement), the Buyer shall, and shall cause each of its Subsidiaries to (i) conduct its business in the ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it; provided, that no breach of this Section 6.2(a) shall result from any actions taken on behalf of the Buyer or its Subsidiaries by DCM under the Management Agreement, other than any such actions taken at the direction of the Board of Directors of the Buyer or the Special Committee; and
(b) between the date of this Agreement to and the earlier Closing Date, except as otherwise expressly provided in this Agreement, provided in Section 6.2(b) of the Closing Date and Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the termination Company. The Buyer agrees that between the date of this Agreement and the Closing Date, except as otherwise expressly provided in accordance with Article 10this Agreement, without the prior written consent provided in Section 6.2 of the Seller Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the Company or the Sellers’ Representative (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt each of the Buyer’s written which agrees to respond promptly to any request for such response and, if the Seller does agreement and not timely respond in writing, to unreasonably withhold or condition such consent shall be deemed withheldagreement), the Buyer shall not, and shall cause its Subsidiaries not toto (provided, undertake that no breach of this Section 6.2 shall result from any of the following actions:
(a) amend or otherwise change (whether by merger or otherwise) the certificate of incorporation or bylaws or any similar governing instruments of the Buyer that would prevent, materially delay or materially impair the transactions contemplated by this Agreement;
(b) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (y) dividends and distributions paid or payable by a Subsidiary of the Buyer to another Subsidiary actions taken on behalf of the Buyer or to its Subsidiaries by DCM under the Buyer);
(c) adjustManagement Agreement, split, combine, redeem, reclassify, combine, subdivide or otherwise amend other than any such actions taken at the terms direction of the Board of Directors of the Buyer Common Shares or set a record date for any of the foregoing;Special Committee):
(di) redeemamend its Charter, repurchase By-laws or acquire comparable organizational instruments; (ii) issue, deliver, sell, grant or authorize any Buyer Common Shares Stock, Buyer Preferred Stock or set a record date for any of the foregoing (other than redemptionscapital stock, repurchases voting securities or acquisitions of Buyer Common Shares from employees, directors and other personnel equity interests of the Buyer in the ordinary course);
(e) voluntarily deregister or any of its Subsidiaries, or any class of securities convertible into exchangeable or exercisable for, or rights, warrants or options to acquire, Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries or repurchase, redeem or otherwise acquire Buyer Common Shares under the Exchange ActStock, Buyer Preferred Stock or voluntarily delist any other capital stock, voting securities or equity interests of the Buyer Common Shares;
(f) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution of the Buyer; or
(g) agree to take any of the foregoing actions.its Subsidiaries;
Appears in 1 contract
Conduct of Business of the Buyer. Except as contemplated by this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth in Section 7.2 of the The Buyer Disclosure Letter, covenants and agrees that during the period from the date of this Agreement to until the earlier of the Closing Date Effective Time and the termination of date on which this Agreement is terminated in accordance with Article 10its terms, without unless otherwise: (i) agreed to in writing by the prior written consent Company (such agreement not to be unreasonably withheld, conditioned or delayed); (ii) required or expressly permitted or specifically contemplated by this Agreement; (iii) required by applicable Law; or (iv) as contemplated by Section 5.02 of the Seller Buyer Disclosure Letter:
(provided, that a) the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt business of the Buyer’s written request for such response and, if the Seller does not timely respond in writing, such consent Buyer and its Subsidiaries shall be deemed withheld)conducted only in, in all material respects, and the Buyer and its Subsidiaries shall not take any action except in, the ordinary course of business, and the Buyer shall use all commercially reasonable efforts to maintain and preserve its and their business organization, assets, properties, employees, goodwill and business relationships with customers, suppliers, partners and other Persons with which the Buyer or any of its Subsidiaries has material business relationships, unless such would not result in a Buyer Material Adverse Effect.
(b) the Buyer shall not, and shall cause not permit any of its Subsidiaries not to, undertake any of the following actionsdirectly or indirectly:
(ai) amend its notice of articles, articles or otherwise change (whether by merger or otherwise) other constating documents or, in the certificate case of incorporation or bylaws or any Subsidiary which is not a corporation, its similar governing instruments of the Buyer that would prevent, materially delay or materially impair the transactions contemplated by this Agreementorganizational documents;
(bii) declaresplit, set aside, make combine or pay reclassify any dividend shares or other distribution, payable in cash, stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (y) dividends and distributions paid or payable by a Subsidiary of the Buyer to another Subsidiary securities of the Buyer or to the Buyer)of any Subsidiary or declare, set aside or pay any dividends or make any other distributions;
(ciii) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for any of the foregoingoutstanding securities;
(div) redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Buyer Common Shares outstanding shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel securities of the Buyer in the ordinary course)or any of its Subsidiaries;
(ev) voluntarily deregister issue, grant, deliver, sell, pledge or otherwise encumber, or authorize the issuance, grant, delivery, sale, pledge or other encumbrance of, any shares or other securities, or any options, warrants or similar rights exercisable or exchangeable for or convertible into shares or other securities, of the Buyer Common or any of its Subsidiaries, except for: (A) the issuance of Buyer Shares under issuable upon the Exchange Act, or voluntarily delist the Buyer Common Shares;
(f) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution exercise of the Buyer; or
(g) agree to take any of the foregoing actions.currently outstanding securities;
Appears in 1 contract
Samples: Arrangement Agreement
Conduct of Business of the Buyer. Except The Buyer agrees that:
(a) between the date of this Agreement and the Closing Date, except as contemplated by otherwise expressly provided in this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth provided in Section 7.2 6.2(a) of the Buyer Disclosure Letter, during required by applicable Law or otherwise agreed to in writing by the period Company (which agrees to respond promptly to any request for such agreement and not to unreasonably withhold or condition such agreement), the Buyer shall, and shall cause each of its Subsidiaries to
(i) conduct its business in the ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it; provided, that no breach of this Section 6.2(a) shall result from any actions taken on behalf of the Buyer or its Subsidiaries by DCM under the Management Agreement, other than any such actions taken at the direction of the Board of Directors of the Buyer or the Special Committee; and
(b) between the date of this Agreement to and the earlier Closing Date, except as otherwise expressly provided in this Agreement, provided in Section 6.2(b) of the Closing Date and Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the termination Company. The Buyer agrees that between the date of this Agreement and the Closing Date, except as otherwise expressly provided in accordance with Article 10this Agreement, without the prior written consent provided in Section 6.2 of the Seller Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the Company or the Sellers' Representative (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt each of the Buyer’s written which agrees to respond promptly to any request for such response and, if the Seller does agreement and not timely respond in writing, to unreasonably withhold or condition such consent shall be deemed withheldagreement), the Buyer shall not, and shall cause its Subsidiaries not toto (provided, undertake that no breach of this Section 6.2 shall result from any of the following actions:
(a) amend or otherwise change (whether by merger or otherwise) the certificate of incorporation or bylaws or any similar governing instruments actions taken on behalf of the Buyer that would preventor its Subsidiaries by DCM under the Management Agreement, materially delay other than any such actions taken at the direction of the Board of Directors of the Buyer or materially impair the transactions contemplated by this AgreementSpecial Committee):
(i) amend its Charter, By-laws or comparable organizational instruments;
(bii) declareissue, set asidedeliver, make sell, grant or authorize any Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries, or any class of securities convertible into exchangeable or exercisable for, or rights, warrants or options to acquire, Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries or repurchase, redeem or otherwise acquire Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries;
(iii) effect any recapitalization, reclassification, split or combination in the capitalization of the Buyer or any of its Subsidiaries;
(iv) make, declare or pay any dividend dividends or other distribution, payable make any distribution or payment (whether in cash, stock or property or any combination thereof) with respect to any shares of its capital stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (yA) dividends and or distributions paid or payable made by a wholly-owned Subsidiary of the Buyer to another Subsidiary of the Buyer or any of its Subsidiaries, (B) as necessary to maintain the Buyer)'s REIT qualification and as necessary for the Buyer to avoid being subject to Tax under Sections 857, 860 and 4981 of the Code, or (C) other ordinary cash dividends made in the ordinary course consistent with past practice;
(c) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for any of the foregoing;
(d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer in the ordinary course);
(e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares;
(fv) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution dissolution;
(vi) facilitate or approve any transaction in which all of the Buyerholders of the outstanding shares of Buyer Common Stock are afforded the opportunity to sell or otherwise dispose of any or all of such shares held by them unless the Buyer shall have used its commercially reasonable efforts to have provision made for the Persons who are to receive the Aggregate Share Consideration to be afforded the opportunity to include the Aggregate Share Consideration, or pro rata portion thereof, in such transaction on the same terms and conditions; or
(gvii) agree to or make any commitment to take any of the foregoing actionsactions prohibited by this Section 6.
Appears in 1 contract
Conduct of Business of the Buyer. Except as contemplated by this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth in Section 7.2 of the The Buyer Disclosure Letter, covenants and agrees that during the period from the date of this Agreement to until the earlier of the Closing Date Effective Time and the termination of date on which this Agreement is terminated in accordance with Article 10its terms, without unless otherwise: (i) agreed to in writing by the prior written consent Company (such agreement not to be unreasonably withheld, conditioned or delayed); (ii) required or expressly permitted or specifically contemplated by this Agreement; (iii) required by applicable Law; or (iv) as contemplated by Section 5.02 of the Seller Buyer Disclosure Letter:
(provided, that a) the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt business of the Buyer’s written request for such response and, if the Seller does not timely respond in writing, such consent Buyer and its Subsidiaries shall be deemed withheld)conducted only in, in all material respects, and the Buyer and its Subsidiaries shall not take any action except in, the ordinary course of business, and the Buyer shall use all commercially reasonable efforts to maintain and preserve its and their business organization, assets, properties, employees, goodwill and business relationships with customers, suppliers, partners and other Persons with which the Buyer or any of its Subsidiaries has material business relationships, unless such would not result in a Buyer Material Adverse Effect.
(b) the Buyer shall not, and shall cause not permit any of its Subsidiaries not to, undertake any of the following actionsdirectly or indirectly:
(ai) amend its notice of articles, articles or other constating documents or, in the case of any Subsidiary which is not a corporation, its similar organizational documents;
(ii) split, combine or reclassify any shares or other securities of the Buyer or of any Subsidiary or declare, set aside or pay any dividends or make any other distributions;
(iii) amend the terms of any outstanding securities;
(iv) redeem, repurchase or otherwise change acquire or offer to redeem, repurchase or otherwise acquire any outstanding shares or other securities of the Buyer or any of its Subsidiaries;
(whether by merger v) issue, grant, deliver, sell, pledge or otherwiseotherwise encumber, or authorize the issuance, grant, delivery, sale, pledge or other encumbrance of, any shares or other securities, or any options, warrants or similar rights exercisable or exchangeable for or convertible into shares or other securities, of the Buyer or any of its Subsidiaries, except for: (A) the certificate issuance of incorporation Buyer Shares issuable upon the exercise of the currently outstanding securities; (B) the issue or bylaws grant of any shares or other securities, or any options, warrants or similar governing instruments rights exercisable or exchangeable for or convertible into shares or other securities, of the Buyer that would preventhave an aggregate issue, exercise or conversion price of no more than $1,000,000 at an individual issue, exercise or conversion price of no less than the five day VWAP of the Buyer Shares ending on the trading day immediately prior to the day on which the entering into of this Agreement by the Parties is publicly announced; and (C) the issuance of securities of the Buyer pursuant to the Financing;
(vi) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, any assets, securities, properties, interests or business having a cost, on a per transaction or series of related transactions basis, in excess of $2,000,000 for all such transactions (provided that the Buyer shall also comply with Section 5.02(b)(xiii) in respect of such transaction or transactions), other than acquisitions of supplies, equipment and inventory in the ordinary course of business consistent with past practice;
(vii) sell, lease or otherwise transfer, directly or indirectly, in one transaction or in a series of related transactions, any assets of the Buyer or of any of its Subsidiaries or any interest in any assets of the Buyer or any of its Subsidiaries having a value greater than $200,000 in the aggregate, other than the sale, lease or disposition or other transfer of inventories or other assets in the ordinary course of business consistent with past practice;
(viii) other than in the ordinary course or to ensure the maintenance of the Buyer’s current level and standard of operations, make any capital expenditure or commitment to do so which individually or in the aggregate exceeds $200,000;
(ix) reorganize, amalgamate or merge the Buyer or any Subsidiary;
(x) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Buyer or any Subsidiary;
(xi) make any material Tax election, information schedule, return or designation, settle or compromise any material Tax claim, assessment, reassessment of liability, file any materially delay amended Tax return, file any notice of appeal or otherwise initiate any action with respect to Taxes, enter into any material agreement with a Governmental Entity with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the extension, or waiver of a limitation period applicable to any material Tax matter or materially impair amend or change any of its methods of reporting income, deductions or accounting for income Tax purposes except as may be required by applicable Law;
(xii) prepay any indebtedness before its scheduled maturity, other than repayments of indebtedness in the ordinary course of business consistent with past practice under the Buyer’s or any Subsidiary’s existing credit facilities; provided that, no material breakage or other costs or penalties are payable in connection with any such prepayment;
(xiii) create, incur, assume or otherwise become liable, in one transaction or in a series of related transactions, with respect to any indebtedness for borrowed moneys or guarantees thereof in an amount, on a per transaction or series of related transactions basis, in excess of $25,000;
(xiv) make any loan or advance to, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of any Person (other than in respect of a liability of a wholly-owned Subsidiary that is not restricted hereunder from incurring that liability or obligation);
(xv) make any material change in the Buyer’s accounting principles, except as required by concurrent changes in GAAP or pursuant to written instructions, comments or orders of a Securities Authority;
(xvi) grant to any employee any increase in compensation in any form, except in the ordinary course of business consistent with past practice;
(xvii) increase any severance, change of control or termination pay to (or amend any existing Contract in this regard from that in effect on the date hereof) with any officer or director of the Buyer or any of its Subsidiaries or increase the benefits payable under any existing severance or termination pay policies with any officer or director of the Buyer or any of its Subsidiaries;
(xviii) waive, release, surrender, abandon, let lapse, grant or transfer any material right or amend, modify or change, or agree to amend, modify or change, any existing material Authorization, right to use, lease or contract other than in the ordinary course, or as required by applicable Law;
(xix) enter into or amend any employment, deferred compensation or similar Contract (or amend any such existing Contract) with any officer or director of the Buyer or any of its Subsidiaries;
(xx) adopt any new Employee Plan or amend or modify, in any material way, any existing Employee Plan;
(xxi) commence, waive, release, assign, settle or compromise any litigation, proceedings or governmental investigations in excess of an amount of $50,000 individually or $100,000 in aggregate or which would reasonably be expected to impede, prevent or delay the consummation of the transactions contemplated by this Agreement;
(bxxii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise or set a record date for any of the foregoing (other than as required by applicable Law or contemplated hereunder, amend or modify in any material respect or terminate or waive any material right under any Material Contract or enter into any contract or agreement that would be a Material Contract if in effect on the date hereof, except where it would not have a Buyer Material Adverse Effect;
(xxxiii) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and amend, modify, terminate, cancel or let lapse any material insurance (yor re-insurance) dividends and distributions paid or payable by a Subsidiary of the Buyer to another Subsidiary policy of the Buyer or any Subsidiary in effect on the date of this Agreement, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the Buyer)coverage under the terminated, cancelled or lapsed policies for substantially similar premiums are in full force and effect;
(cxxiv) adjustenter into or amend any Contract with any broker, splitfinder or investment banker; or
(xxv) authorize, combineagree, redeem, reclassify, combine, subdivide resolve or otherwise amend the terms of the Buyer Common Shares or set a record date for commit to do any of the foregoing;
(d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer in the ordinary course);
(e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares;
(f) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution of the Buyer; or
(g) agree to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business of the Buyer. Except as contemplated by this Agreement, as required by applicable Law, any COVID-19 Measures the Plan of Merger or as otherwise set forth in Section 7.2 SECTION 6.2 of the Buyer Disclosure Letter, during the period from commencing on the date of this Agreement to the earlier of and ending on the Closing Date and (or the termination of date on which this Agreement in accordance with Article 10, without the prior written consent of the Seller (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt of the Buyer’s written request for such response and, if the Seller does not timely respond in writing, such consent shall be deemed withheldis terminated pursuant to its terms), the Buyer shall not, and shall cause its Subsidiaries CMAC Sub (when established) to (x) not toengage in any business activities, undertake conduct any operations, enter into any agreements or Contracts with any other Person or incur any liabilities, other than in connection with the consummation of the following actions:
transactions contemplated hereby, (ay) use commercially reasonable efforts to preserve intact the business organization of the Buyer and CMAC Sub (when established), to retain the services of the current directors and officers of the Buyer and CMAC Sub (when established) and to maintain satisfactory relationships with the Persons having business relationships or dealings with Buyer and CMAC Sub (when established). Without limiting the generality of the foregoing and except as contemplated by this Agreement or the Plan of Merger, the Buyer shall not and shall cause CMAC Sub (when established) not to (i) amend or otherwise change (whether by merger modify or otherwise) the propose to amend or modify its organizational documents or file any certificate of incorporation designation or bylaws similar instrument with respect to the shares of its authorized but unissued capital stock, (ii) split, combine or any similar governing instruments reclassify its outstanding shares of the Buyer that would preventcapital stock, materially delay or materially impair the transactions contemplated by this Agreement;
(biii) declare, set aside, make aside or pay any dividend dividend, or other actual, constructive or deemed distribution, payable in cash, stock or property in respect of any capital stock, (iv) repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock, (v) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any other property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter assets, and (yvi) dividends and distributions paid or payable by a Subsidiary of the Buyer to another Subsidiary of the Buyer or to the Buyer);
(c) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for make any of the foregoing;
(d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer change in the ordinary course);
(e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares;
(f) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution of the Buyer; or
(g) agree to take any of the foregoing actionsits capital structure.
Appears in 1 contract
Conduct of Business of the Buyer. Except The Buyer agrees that:
(a) between the date of this Agreement and the Closing Date, except as contemplated by otherwise expressly provided in this Agreement, as required by applicable Law, any COVID-19 Measures or as otherwise set forth provided in Section 7.2 6.2(a) of the Buyer Disclosure Letter, during required by applicable Law or otherwise agreed to in writing by the period Company (which agrees to respond promptly to any request for such agreement and not to unreasonably withhold or condition such agreement), the Buyer shall, and shall cause each of its Subsidiaries to
(i) conduct its business in the ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it; PROVIDED, that no breach of this Section 6.2(a) shall result from any actions taken on behalf of the Buyer or its Subsidiaries by DCM under the Management Agreement, other than any such actions taken at the direction of the Board of Directors of the Buyer or the Special Committee; and
(b) between the date of this Agreement to and the earlier Closing Date, except as otherwise expressly provided in this Agreement, provided in Section 6.2(b) of the Closing Date and Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the termination Company. The Buyer agrees that between the date of this Agreement and the Closing Date, except as otherwise expressly provided in accordance with Article 10this Agreement, without the prior written consent provided in Section 6.2 of the Seller Buyer Disclosure Letter, required by applicable Law or otherwise agreed to in writing by the Company or the Sellers' Representative (provided, that the Seller shall affirmatively provide or withhold such consent no later than five (5) Business Days following receipt each of the Buyer’s written which agrees to respond promptly to any request for such response and, if the Seller does agreement and not timely respond in writing, to unreasonably withhold or condition such consent shall be deemed withheldagreement), the Buyer shall not, and shall cause its Subsidiaries not toto (PROVIDED, undertake that no breach of this Section 6.2 shall result from any of the following actions:
(a) amend or otherwise change (whether by merger or otherwise) the certificate of incorporation or bylaws or any similar governing instruments actions taken on behalf of the Buyer that would preventor its Subsidiaries by DCM under the Management Agreement, materially delay other than any such actions taken at the direction of the Board of Directors of the Buyer or materially impair the transactions contemplated by this AgreementSpecial Committee):
(i) amend its Charter, By-laws or comparable organizational instruments;
(bii) declareissue, set asidedeliver, make sell, grant or authorize any Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries, or any class of securities convertible into exchangeable or exercisable for, or rights, warrants or options to acquire, Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries or repurchase, redeem or otherwise acquire Buyer Common Stock, Buyer Preferred Stock or any other capital stock, voting securities or equity interests of the Buyer or any of its Subsidiaries;
(iii) effect any recapitalization, reclassification, split or combination in the capitalization of the Buyer or any of its Subsidiaries;
(iv) make, declare or pay any dividend dividends or other distribution, payable make any distribution or payment (whether in cash, stock or property or any combination thereof) with respect to any shares of its capital stock, property or otherwise or set a record date for any of the foregoing (other than (x) the declaration and payment of cash dividends to the holders of Buyer Common Shares in the ordinary course in an amount not to exceed $0.55 per share per quarter and (yA) dividends and or distributions paid or payable made by a wholly-owned Subsidiary of the Buyer to another Subsidiary of the Buyer or any of its Subsidiaries, (B) as necessary to maintain the Buyer)'s REIT qualification and as necessary for the Buyer to avoid being subject to Tax under Sections 857, 860 and 4981 of the Code, or (C) other ordinary cash dividends made in the ordinary course consistent with past practice;
(c) adjust, split, combine, redeem, reclassify, combine, subdivide or otherwise amend the terms of the Buyer Common Shares or set a record date for any of the foregoing;
(d) redeem, repurchase or acquire any Buyer Common Shares or set a record date for any of the foregoing (other than redemptions, repurchases or acquisitions of Buyer Common Shares from employees, directors and other personnel of the Buyer in the ordinary course);
(e) voluntarily deregister the Buyer Common Shares under the Exchange Act, or voluntarily delist the Buyer Common Shares;
(fv) adopt or effect a plan of bankruptcy or complete or partial liquidation or dissolution dissolution;
(vi) facilitate or approve any transaction in which all of the Buyerholders of the outstanding shares of Buyer Common Stock are afforded the opportunity to sell or otherwise dispose of any or all of such shares held by them unless the Buyer shall have used its commercially reasonable efforts to have provision made for the Persons who are to receive the Aggregate Share Consideration to be afforded the opportunity to include the Aggregate Share Consideration, or PRO RATA portion thereof, in such transaction on the same terms and conditions; or
(gvii) agree to or make any commitment to take any of the foregoing actionsactions prohibited by this Section 6.
Appears in 1 contract
